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.
On Wednesday, the Supreme Court considered Timbs v. Indiana, its first Excessive Fines Clause case in two decades. During oral argument, Indiana's solicitor general admitted that if the Clause didn't apply to state civil forfeitures, then the government could forfeit Bugattis caught speeding. Reporting from One First Street for Forbes.com, IJ's Nick Sibilla has more.
- High schooler wins 2016 congressional art competition; his painting is displayed in Congress alongside winners from other districts. But police unions object; the painting shows a pig in police uniform pointing a gun at a Ferguson, Mo. protester. It's taken down. A First Amendment violation? D.C. Circuit: All the winning art from 2016 has been taken down. The case is moot.
- Remember "Bridgegate"? The Third Circuit does, and it affirms the conviction of two former New Jersey officials for wire fraud, based on emails they sent to jumble the traffic patterns on the George Washington Bridge (thereby defrauding the Port Authority of the use of its toll booths and employee labor). The malefactors were wrongly convicted, however, on additional counts of conspiring to violate commuters' constitutional right to intrastate travel. The right to intrastate travel is a bit murky, says Third Circuit, so we can't say the officials violated any "clearly established" constitutional rights.
- Pro-tip for the attorneys: Don't neglect your continuing legal education requirements. Even if you fall just one credit short, you might get administratively suspended, fired by a client for failing to proactively inform them of your suspension, admonished for engaging in the unauthorized practice of law, and lose out on your 35 percent contingency fee, as the Third Circuit illustrates.
- Two photographers file similar copyright suits against same company, both in the Third Circuit. Trial Judge #1 holds one case must instead go to a different circuit; Trial Judge #2 holds the other does not. Third Circuit: Trial Judge #1 was wrong, and Trial Judge #2 was right. But since this is here on mandamus—a special expedited appeal for addressing extraordinary circumstances—the one case will proceed elsewhere. Judge Roth (partially dissenting): Let's not be slave to technicalities. We shouldn't permit "opposite results in two consolidated cases with the same legal issues and the same factual background."
- Developer spends years, many millions of dollars to acquire 540 acres and the rights to develop it. Yikes! Montgomery County, Md. officials rezone the land and impose a series of requirements that, according to the developer, reduce the land available for development to just 93 acres. The developer sues in state court; the county removes the case to federal court. Fourth Circuit: "Resolving the routine land-use disputes that inevitably and constantly arise among developers, local residents, and municipal officials is simply not the business of the federal courts." If you want a case to stay in state court, don't raise federal claims.
- Houston police receive 911 call about black man breaking into a Toyota Corolla. Officers stop, handcuff (black?) man cleaning the window of his Mercedes-Benz. They search his wallet, run a warrant search, and use his keys to open the car and search it. They release him after about 20 minutes. Did they unlawfully detain or search him? Maybe to both, says the Fifth Circuit. The cops knew shortly after cuffing him that he owned the car and should have released him then. The man's (pro se) suit can proceed.
- Count the twists. Defendant shanks prosecutor in court during trial. Michigan state judge leaks the security footage to the press. And then the sheriff investigates the judge for the leak. And then the press reports on the investigation. So then the judge sues the sheriff for investigating her. Certainly a mess—but does the judge have a First Amendment retaliation claim? Sixth Circuit: She does not. Leaking the footage might be speech about courtroom security, and that's a matter of public concern. But there's no evidence the sheriff was retaliating for the leak; he was investigating what he thought might be obstruction of justice.
- Ohio bloggers: We're worried that state harassment laws prohibit us from using "invective" and "ridicule" to make political points. Sixth Circuit: Come on. No one's going to prosecute you for political speech. So you don't have standing to challenge the laws as overbroad.
- In 1988, Wisconsin man makes $800 in fraudulent credit card charges. He spends the next 25 years on probation or imprisoned for probation violations. Yikes! Turns out his sentence legally ended in 1995. Seventh Circuit: The man can absolutely sue about that. Because he couldn't sue for damages while he was under supervision, his claims are timely now. And a jury could find that some of the defendants were deliberately indifferent to his illegal sentence.
- Woodbury, Minn. hotel room party becomes hostage situation when a guest whips out a gun. A teen flees the room; police shoot him dead. District court: Qualified immunity. Eighth Circuit: Reversed. There's a factual dispute about whether the victim failed to comply with the officers' commands—giving rise to a reasonable belief that he posed a threat—or whether (as one officer suggested immediately afterward) he was shot while lying on the ground and complying fully with the officers' orders. We need a trial to sort that out.
- Missouri man starts a one-person nonprofit, on behalf of which he meets with legislators to talk about policy issues. He receives no payment and makes no expenditures but is still required to register as a lobbyist and file disclosure reports. A First Amendment violation? Eighth Circuit: Not at all; besides, the disclosures will be easy since he has nothing to report. Dissent: What possible interest could the government have in forcing this guy to file blank reports?
- Arkansas state trooper activates his lights; woman driving with her daughter (a minor) declines to pull over in the dark, unlit area but does slow down to 35 (in a 55). After less than a minute, the trooper rams the woman's car; she crashes into a cement culvert. Excessive force? The Eighth Circuit says no; there's no case on point clearly establishing that an officer can't run someone off the road in these circumstances, so the trooper is entitled to qualified immunity.
- Wisconsin resident makes $100 contribution to his brother-in-law, who was running for the Alaska state House in 2015. Uh oh: In 2006, Alaska adopted a $3,000 limit on contributions a candidate may receive from non-Alaska residents, and this candidate had already hit that limit, so he has to return the check. Ninth Circuit: Limiting contributions from non-state residents violates the First Amendment. Dissent: In Bluman v. FEC, then-Judge Kavanaugh upheld a prohibition on non-U.S. citizens making contributions in federal elections; this is no different. (N.B.: IJ submitted an amicus brief urging the Supreme Court to overturn Bluman.)
- Allegation: 15-year-old water polo goalie is struck in face by ball, continues playing in tournament throughout the day despite demonstrating concussion symptoms, taking more shots to the head. Yikes! She's diagnosed with post-concussion syndrome, has to withdraw from school. Was the national water polo governing body negligent in failing to implement concussion protocols? Ninth Circuit: Might could be.
Last year, a Wisconsin judge struck down a state law banning the sale of home-baked goods, making the world a little freer for the three home bakers represented by IJ. But what about other similarly situated people? Did the ruling benefit them? Thanks to the wonders of social media, we were able to survey 79 Wisconsinites who operate home-baking businesses. Ready to Roll: Nine Lessons from Ending Wisconsin's Home-Baking Ban tells how bakers' newfound income helps them pay their bills, buy lessons for their kids, and even afford health insurance. These results demonstrate the near-immediate impacts of positive legal and policy reforms. Click here to read the report.