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.
- D.C. Circuit (2016): A lawsuit filed by Holocaust survivors against Hungary and its state-owned railway should not have been dismissed; a 1947 peace treaty requiring Hungary to compensate victims doesn't preclude other means of seeking compensation. District court on remand: Nevertheless, case dismissed. The evidence and witnesses are located in Hungary; the case should be tried in Hungarian courts. D.C. Circuit (2018, over a dissent): Reversed.
- Inmate at Berlin, N.H. prison has his skull broken by other inmates, who then place him in bed, clean him up. An officer doing rounds fails to note the injured inmate is in the wrong cell, which ultimately delays medical treatment by about an hour and a half. Can he sue the officer? The First Circuit says no.
- Supreme Court (2013): A federal law that requires U.S. nonprofits to adopt policies explicitly opposing prostitution and sex trafficking in order to receive federal funds to combat HIV/AIDS abroad compels speech in violation of the First Amendment. Feds: Sure thing. But the foreign affiliates of those nonprofits must still adopt policies that explicitly oppose prostitution and sex trafficking. Second Circuit (over a dissent): Not so.
- A suspect's invocation of his Miranda rights is an invocation of his Miranda rights—even if he invokes them in an angry tone, holds the Fourth Circuit, declining to require suspects to walk a "tonal tightrope" in their interactions with police.
- Allegation: In response to a single incident of misbehavior, a pretrial detainee is placed in solitary confinement for three and a half years until his eventual trial (at which he is acquitted of the most serious charge and sentenced to time served). Which could maybe be a constitutional violation, holds the Fourth Circuit, finding that local officials are not entitled to qualified immunity.
- In true crime news, the Fourth Circuit spends some 154 pages rejecting the latest request for postconviction relief in a murder case that went to trial in 1979 and whose procedural history requires a footnote stretched across two pages.
- Various Iraqi nationals living in the United States are ordered removed back to Iraq, mostly because of criminal convictions. Those removals don't happen because Iraq won't take them—until 2017, when diplomacy changes Iraq's mind, meaning long-stalled removals are now imminent. Sixth Circuit, over a dissent: And the federal courts don't have jurisdiction to change that. Take your immigration issues to immigration court.
- "If I did something wrong, why ain't I in copyright court?" asked recording artist Bishop Bullwinkle, shortly before a court held that he had done copyright wrong. Turns out his viral hit "Hell 2 Da Naw Naw" improperly sampled Bigg Robb's "Lookin for a Country Girl." Faced with a silly procedural objection, the Sixth Circuit affirmed. Come for a tale of Southern soul music rivalry; stay for the holding that "elect" means "choose" or "pick out."
- Appleton, Wisc. man murders his estranged wife. His defense is that she provoked him, so it's second-degree murder rather than first. The trial judge has to decide if there's enough evidence to allow the defense, but the man doesn't want to disclose more strategy. So the judge listens to the man ramble about the murder privately in chambers; defense counsel is there but not allowed to talk. Judge then rules there's not enough evidence for the man to argue provocation, and he's convicted in the first degree. The man, on habeas: A silenced lawyer violates my right to counsel. The Seventh Circuit, en banc and over a dissent: It's dodgy, but not dodgy enough to give you a new trial.
- Outgoing Obama administration officials leave "time bomb" for new USDA officials: proposed regulations that increase the agency's regulatory authority (to enforce a "per se" ban on deceptive practices in the meat packing industry absent a showing of potential harm to competition) in a way that courts have long rejected. The new administration cancels the change. Eighth Circuit: Which was not arbitrary and capricious.
- California law permits police to impound vehicles for 30 days if the vehicle's driver has never been issued a license. Nevertheless, in two separate instances, police in Sonoma County impound vehicles driven by drivers who have been issued licenses (both Mexican, one expired). And both times the driver had a friend with a valid California license who could have taken possession. Ninth Circuit: Damages upheld.
- And in en banc news, the D.C. Circuit (over a dissent) will not reconsider its decision that D.C. transit officials' rejection of a proposed advertisement that sought to promote religion doesn't violate the Constitution. Nor will the Ninth Circuit (over a dissent) reconsider its decision that prayers at school board meetings violate the Establishment Clause.
- And in appellate briefing news, defense lawyers have submitted a 15-part, 465-page argument in the First Circuit challenging the conviction and death sentence of "Boston Marathon Bomber" Dzhokhar Tsarnaev. The case, they say, "should not have been tried in Boston."