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.
- Pennsylvania man serves 10-year sentence for using internet to entice minor (actually an undercover officer). Some conditions of his supervised release: the installation of filtering and monitoring software on his computer and also, confusingly, a lifetime ban on computer and internet use. Third Circuit: He "cannot follow these conditions because he cannot tell what they forbid." Which violates due process. Further, a lifetime ban is more restrictive than necessary. Vacated and remanded.
- Man nailed for drug crimes on New Year's Eve gets charges dismissed; a Pennsylvania court says the search violated the Fourth Amendment. After the court's decision, and three years after his arrest, he sues the arresting officer (for violating the Fourth Amendment). Third Circuit: Too late! The two-year statute of limitations runs from the time of the search, not the time of the decision invalidating it.
- Faced with funding shortfall, Louisiana public defenders put noncapital defendants on months-long waitlists; defendants appear in court without counsel. Defendants sue the defenders: This is unconstitutional in a bunch of ways. Public defenders: Totally. Somebody should fund us. Louisiana Legislature (after several years of litigation): Oh all right, here's $5 mil; eliminate the waitlists. Defendants: Great, but this problem isn't going away. Fifth Circuit: "[N]o waitlists = no live case or controversy = no jurisdiction."
- Texas officials order doctor to turn over patient records. (He declines, but an office manager surrenders them after being threatened with arrest.) Fifth Circuit: Though the records were potentially inculpatory, the doc can't challenge the search because he has no privacy interests at stake. Only the patients have privacy interests in the medical records, and because the doc doesn't own the clinic where he works, he doesn't have a privacy interest in the area searched (which differentiates the case from the Fifth Circuit's August decision in a similar case).
- Evendale, Ohio officials pass law requiring warrantless inspections of rental properties. Landlords: Which violates the Fourth Amendment. Sixth Circuit: You don't have standing because officials haven't actually pounded on your door.
- Man plans, serves as a lookout for five armed robberies of Detroit electronics stores, gets 124.5-year sentence. U.S. Supreme Court: Take another look at the sentence in light of new precedent narrowing what counts as a "crime of violence." Sixth Circuit: Sure thing. He gets 124.5 years. Robbery involves force and so is a crime of violence, as is aiding and abetting said force. (And his other arguments die many procedural deaths.)
- Man who is 12 years into 24-year sentence has his conviction partially overturned (after the U.S. Supreme Court narrows what counts as a "crime of violence"). Yikes! The max sentence after the correction is just 10 years. Just resentence him to time served? No, says the Sixth Circuit (in July). If the max is 10, you can't sentence him to 12. Pick a new remedy. The dissent: As Lady Macbeth says in Act III, "What's done cannot be undone." [Editor's note: Actually, that's Act V. But Act III does say that "Things without all remedy / Should be without regard: what's done is done."] Sixth Circuit (this week, in a separate case): We decided this in July. Time-served sentences are a no-go. (The Sixth Circuit Blog has the scoop.)
- Two 16-year-olds from Iowa are sent to Irma, Wisc. juvenile detention facility. Allegation: Where for months they spend 22 hours a day alone in 7-by-10-foot cells containing only a metal cot and thin mattress. They receive little to no education, are subjected to excessive force, and both attempt suicide. Seventh Circuit: No qualified immunity (yet) for Iowa official who contracted with Wisconsin officials to send the teens there.
- Coles County, Ill. officials hike taxes for commercial and industrial properties in one township (by 25 and 21 percent, respectively)—but not for anywhere else in the rest of the county. An equal protection violation? No need to consider that, says the Seventh Circuit; the comity doctrine prevents us from disrupting state tax systems (so long as those systems offer adequate means of challenging tax assessments).
- Under the Prison Litigation Reform Act of 1995, prisoners cannot file a lawsuit challenging prison conditions until they have exhausted "such administrative remedies as are available." But how "available" are those remedies if they are described to a prisoner only in a language prison officials know he does not understand? Not "available" enough to bar this lawsuit, says the Seventh Circuit.
- If you were ripped off by a couple of companies that enrolled consumers in membership-rewards programs without their consent, congratulations, you're entitled to a $20 credit to buy more stuff from them. Ninth Circuit: Your class counsel, however, is probably not entitled to $8.7 million in attorney's fees for winning you a coupon.
- After President Trump pardoned controversial former sheriff Joe Arpaio, a judge dismissed his prosecution but did not vacate his conviction for criminal contempt of court. Federal prosecutors now say they will not defend the judge's ruling on appeal. Does the court have the power to appoint a special prosecutor to do the job for them? Ninth Circuit: We see no reason why not. Dissent: Prosecuting is the executive's job; you're violating the separation of powers.
- Woman arrested for driving with suspended license makes bond, but Bulloch County, Ga. jail officials suspect she's in the U.S. illegally, decline to release her. Her sister calls every 15 minutes for updates, brings documents proving her citizenship to the jail, eventually contacts ICE, which tells the jail to release her. (She'd spent 26 hours in jail.) Eleventh Circuit: The Fourth Amendment requires probable cause to detain someone. Remand to the district court to assess each official's actions and determine which are responsible.
- Night-shift worker: Olympia, Wash. officer tailed me as I returned to office in company vehicle and uniform (after completing repair job off site). Then he inexplicably reported a potential burglary in progress, and officers barged into the office unannounced, pointed guns, knocked me down, detained me for 45 minutes, laughed and high-fived. Officer: I didn't tail him; I just saw the office had an open door and decided to investigate. District court: Could be excessive force, but the worker's claim for intentional infliction of emotional distress can't go; the conduct alleged isn't "'utterly intolerable in a civilized society.'" (H/t: Police4aqi.)
- Report: Between 1981 and 2014, black defendants in Washington state courts were 4.5 times more likely to be sentenced to death than similarly situated white defendants. Washington Supreme Court: The state's death penalty violates the state constitution because it is administered arbitrarily and in a racially biased way.
This week, the U.S. Supreme Court vacated an abominable ruling out of the Eighth Circuit that upheld Missouri's licensing law for African-style hair braiders. The law, which has since been amended by state legislators to exempt braiders, forced braiders to spend 1,500 hours and thousands of dollars at cosmetology schools (that provide little or no instruction relevant to braiding) on pain of criminal penalties. The Eighth Circuit ruled that an occupational licensing regime that imposes a "needless, wasteful requirement" passes constitutional muster if even a small percentage of it is rationally related to any legitimate public interest. That bad precedent is no longer on the books. Read more here.