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.
- The D.C. Circuit continues to rule on a bevy of motions to pause proceedings while federal agencies lack funding thanks to the government shutdown. In one, the court will indeed hear arguments next week regarding whether the USDA violated open records law when, a few weeks after the most recent presidential inauguration, it pulled from its website a trove of documents concerning its inspection and licensing of animal research facilities. And in another, the parties must still brief whether Portland, Ore.'s use of airport revenue to pay the city's sewer, stormwater, and water bill (even though some of the costs are not incurred on the airport's behalf and do not directly benefit the airport) violates federal law. (A dissent is frustrated by the circuit's failure to settle on a principled way to decide the stay motions and believes this case should indeed be stayed.)
- Man makes false statement on mortgage application, application for hunting license. But that was in the '90s; his troubles with the law are well behind him. Now he runs a successful business, and the bank he once attempted to deceive issues him credit. Nevertheless, as a convicted felon, he is banned by federal law from owning a firearm. A Second Amendment violation? The D.C. Circuit says no.
- Banning people from using the internet is tantamount to exiling them from society, says the Second Circuit. So if the district court is going to impose that (as well as a ban on viewing legal porn) as a condition of supervised release, the court needs to explain how such a drastic measure is necessary to meet the goals of sentencing. Which it wasn't in the case at hand, even for a sex offender.
- In August, the Third Circuit released a 142-page opinion that partially upheld the conviction of a Philadelphia politician (a former U.S. congressman) on corruption charges. (The decision also vacated some counts while reversing acquittals on others.) This week, the court released an amended opinion that comes in at 165 pages. The Short Circuit staff regrets it has no idea what's changed. (CA3blog notes the typeface is now larger.)
- Many local governments use the FBI's background check system to carry out certain of their obligations under state law (like processing applications for firearm licenses). Yikes! Though federal law requires it, the Department of Defense consistently fails to provide data to the system. NYC, Philadelphia, and San Francisco: DOD, you must comply. Fourth Circuit: Alas, while the cities may use the system, they may not use the courts to compel the gov't to make that system more useful.
- Pro-life activists pose as reps from fetal tissue company, surreptitiously record videos at Planned Parenthood. Texas officials: The videos revealed "numerous violations of generally accepted standards of medical practice," so no more Medicaid funds for Planned Parenthood. District court: Can't do that. Fifth Circuit (including a picture of what seems to be fetal tissue): The district court needs to take a second look with more deference to Texas officials' findings. (Moreover, contra the district court, the videos were not deceptively edited. See footnote six.)
- Allegation: Attorney suffered workplace harassment, retaliation, and discrimination at the hands of the Dallas, Tex. city attorney's office. Texas state courts kicked her case out for being untimely; normally this means that her federal case cannot continue, but a 38-year-old Fifth Circuit decision says that it can. What gives? Fifth Circuit: The rule of orderliness does not oblige us to esteem an old, "legally anomalous" case over decades of contrary precedent. "[D]isregarding on-point precedent in favor of an aberrational decision flouting that precedent is the antithesis of orderliness."
- Law school grad does not take repeated bar rejections well, begins "a history of personally attacking decisionmakers whose decisions he does not like." That includes calling their employers, sending letters to their clients and friends, and picketing their offices. Sixth Circuit: And thus the Western District of Michigan didn't have to let the guy practice there. It's not what he was saying—it's how he said it.
- Man is held for 58 days in Grant County, Ky. jail on a warrant for failure to pay child support. But call up Maury—he is not the father! So can he sue the officer who was holding him? Sixth Circuit: He cannot. The officer wasn't indifferent to the possibility of having the wrong guy.
- Short-term rental hosts in Chicago must register with the city, acquire a business license, and comply with a host of other requirements and restrictions (including geographic eligibility; caps on the number of rentable units in a building; and health, safety, and reporting requirements). A nonprofit and individuals interested in renting (from or to others) sues, alleging the ordinance violates the First Amendment and 14th Amendment. Seventh Circuit: Dunno, but you'll have to go back to the district court to sort out whether the plaintiffs even have standing to bring this suit. We have grave doubts.
- Allegation: Indianapolis detective arrests man for bludgeoning man's own octogenarian mother to death. But the detective's warrant application contains misstatements, omissions, and perhaps outright lies. (For instance, it states the son placed a call from his mother's house one hour before he says he found her. But he didn't; the call had been routed through a cell tower one time zone away.) Charges are dropped. The man sues the detective. Detective: Ah, but I get qualified immunity since the lies were not clearly material. Seventh Circuit: Absolutely not. To trial the case must go.
- Wisconsin jury convicts man of threatening two state judges. Due to clerical error, man gets jurors' names and addresses. Yikes! After serving his time, man sends the jurors unsettling letters asking for their support in getting him a pardon. Double yikes. Another jury convicts him of multiple counts of stalking. And we will not disturb those convictions, says the Seventh Circuit, rejecting a battery of First, Sixth, and 14th Amendment arguments.
- Allegation: City of Helena-West Helena, Ark. woman pays fines, but instead of documenting the payment, the Phillips County District Court clerk's office issues an arrest warrant against her for unpaid fines. She is arrested and her car towed before the mistake is discovered. She sues the city, alleging an unconstitutional policy of not documenting fine payments. District court: Aha! But the clerk is a state official, not a city official, so you shouldn't have sued the city. Eighth Circuit: Double aha! The law making Arkansas district courts part of state government wasn't fully implemented in Phillips County until 2017—after the alleged constitutional violations. So maybe the clerk was a city official after all. The case can proceed.
- Allegation: Pretrial detainee was denied bed, slept on floor for his three-and-a-half-day stay at Los Angeles County jail facility. Can he sue the now-former sheriff? Nope, says the Ninth Circuit: exigent circumstances. Hundreds of inmates at facilities across the county were rioting at the time; jail staff had their hands full.
- Pascua Yaqui, Ariz. cop pulls over car for speeding. Driver provides identification but front-seat passenger refuses demands for ID. And that refusal was not a constitutional basis for prolonging the traffic stop, says Ninth Circuit, so the six bullets later found in the passenger's pockets (giving rise to a felon-in-possession charge) should have been suppressed.
- Fire breaks out at Tucson, Ariz. hotel in 1972, killing 29 people. A 16-year-old who was nearby is convicted "on the basis of little more than that proximity and trial evidence that 'black boys' like to set fires." Much later, evidence emerges suggesting that the fire was not caused by arson. (Prosecutors also allegedly withheld evidence of the same.) After 42 years of imprisonment, prosecutors offer him immediate release if he pleads guilty to the original charges. He accepts. Can he sue about the original prosecution? Ninth Circuit: No, he just pleaded guilty. Dissent: "Far from being the product of a new, constitutionally conducted second trial, [the man's] second conviction was the product of his desperate circumstances. In his 60's, he faced acceptance of the plea offer or waiting years for a habeas petition to work its way through the courts."
On Wednesday, the Supreme Court held a spirited oral argument for Tennessee Wine & Spirits Retailers Association v. Blair, a case that offers the court the rare opportunity to scrutinize the 21st Amendment. In what could set a major precedent for how states can regulate wine and liquor, many of the justices sharply critiqued state laws that do little more than protect in-state businesses from outside competitors in the alcohol industry. Click here to read more.