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.
- Federal inmate files lawsuit challenging his treatment in solitary confinement. Bureau of Prisons: He's been transferred to a new prison, so the case is moot. D.C. Circuit: [Looking up from rap sheet] Yeah, we're pretty sure this guy is going to end up in solitary again, so the case can go forward.
- Delaware attorney longs to be a judge, but there's one problem: He's a "Bernie independent," and the Delaware Constitution limits service on the state's courts to members of the Democratic and Republican parties, who must be appointed in equal numbers. Unconstitutional limit on the freedom to associate or legitimate attempt at ideological balance? Third Circuit: Dear Delaware, we get what you're trying to do, but the First Amendment won't let you do it this way.
- Did the U.S. Patent & Trademark Office err when it concluded that Booking.com was generic and therefore could not be trademarked? Fourth Circuit: Booking Yeah! Dissent: Booking Nah!
- The Natural Gas Act allows private companies to use eminent domain to build pipelines but does not give them the power to take immediate possession of the land they want prior to final judgment in the condemnation action. District court: No problem, they can just take immediate possession by means of a preliminary injunction. Fourth Circuit: We said this was OK 15 years ago, which makes it OK today, too.
- Allegation: Church seeks zoning variance so it can operate out of Baltimore County, Md. house (situated on 1.2 acres of land). Planning officials don't object. Yikes! The neighbors object and are super racist about it. The county denies the variance. Fourth Circuit: Given the irregularities in the county's decision-making process, it is at least possible officials were swayed by the neighbors' animus. The case should not have been dismissed. And the church's First and 14th Amendment claims deserve strict scrutiny.
- Federal law makes it a crime for any agency charged with the administration of juvenile justice or incarceration to deprive people of their constitutional rights. Allegation: That's exactly what the juvenile courts in Lauderdale County, Miss. are doing—running a "school-to-prison pipeline." Fifth Circuit: No dice. The Youth Court is not a "governmental agency" within the meaning of the statute.
- Transgender woman applies for job and is extended an offer. But then soon-to-be employers discover woman had concealed from them that she'd been fired from her previous job. Offer rescinded. Woman files Title VII lawsuit asserting discrimination on the basis of transgender status. Fifth Circuit panel (Judge Ho): Even setting aside whether Title VII protects against transgender discrimination, the woman can't possibly make out a Title VII claim—not least because the employers rescinded her offer before they learned of her transgender status. Concurrence (also Judge Ho): But just to be clear, Title VII absolutely does not protect against transgender discrimination. Concurrence (Judge Higginbotham): And of course, "elegant asides" about Title VII's scope are absolutely beside the point in this case.
- Bank robber is sentenced to 20 years' imprisonment and ordered to pay $189k (plus interest) in restitution, in quarterly installments of the greater of $25 or 50 percent of his prison wages. The robber sticks to the installment plan while also accumulating $3,400 in prison wages. Gov't: We want that money, too. District court: Cool. Fifth Circuit: Not cool. The restitution order specifies an installment plan and the inmate has stuck to the plan, so gov't can't demand more.
- After a jury convicts Detroit man of gang-related murder, Juror #4 reveals that other jurors had Facebook-stalked the defendant, researched information about gangs, and discussed their findings during deliberations. State courts: No big deal; the Facebookery and Googling largely duplicated evidence presented at trial. Federal district court: Actually, this is a very big deal; the state needs to either retry the guy or set him free. Sixth Circuit: Agreed that it's a potentially big deal, but rather than a second trial, the guy is entitled to an initial hearing on whether the jurors' "extracurricular fact-finding" actually affected the verdict. Dissent: The district court was well within its rights to say that a new trial is the appropriate remedy.
- Elkhart, Ind. man is shot in the face, lives to testify. Defendant is convicted based on the man's identification. But wait! Did the identification materialize because of hypnosis—which the prosecutor suggested and arranged for but, aware "there might be a problem in court," never disclosed to the defense? Seventh Circuit (over a dissent): Well, the lack of disclosure was a problem. The defendant gets a new trial.
- Woman doesn't pay her $60 co-pays for physical therapy. A debt collector sends her letters for three years; she doesn't pay, so the debt collector informs credit reporting agency that she owes nine debts of $60. Yikes! The woman sues the debt collector because the debt should have been reported in aggregate ($540)—not as nine separate debts of $60. District court: Yup, the debt collector must pay her $1,000. Seventh Circuit: Reversed. No law or regulation actually says that.
- Little Rock, Ark. police dept. hires officer who attended a KKK meeting in high school. His five-year career is "horror show" of misconduct, culminating in unjustified fatal shooting of a black 15-year-old. (Click here for longform journalism.) Eighth Circuit: The teen's mother can't sue the police chief or the city. (And while she did win a civil trial against the now-ex cop, he lacks the money to pay the $415k he owes her.)
- In this easy-affirm from the Eighth Circuit, a man solicited more than a million dollars to establish a nation for the Hmong ethnic group, the details of which were "top secret." (The secret was fraud.)
- Valley fever, caused by inhaling fungal spores, is particularly prevalent in certain California prisons. (It's unclear why.) Dozens of prisoners sue, claiming their increased exposure risk violates the Eighth Amendment. And black prisoners—who are more likely to get the fever (it's unclear why)—claim they weren't kept out of those prisons soon enough. Ninth Circuit: Qualified immunity. Prison officials tried to mitigate exposure risk, and besides, people do voluntarily live in places with increased risk of valley fever. As for the black prisoners' claim—prison officials couldn't know the Constitution required them to discriminate. (A further detail: Because of other problems, California's prison medical system has been under federal control since 2006.)
- Troubled California man, arrested for slashing his girlfriend's tire, is left alone in a police cell. On the phone in another room, arresting officer is allegedly told the man is suicidal. Which he is: Back in the cell, the man is hanging himself with his belt. By the time the officer returns, about 15 minutes later, the man has severe brain damage. The man sues. Ninth Circuit (over a partial dissent): It's just not clear the officer knew enough to have had to rush back to the cell. So he gets qualified immunity on the federal claim against him. But claims against him under California law and against the city will proceed to trial.
- Alabama corrections officials refuse Muslim inmate's request to have his imam present at his execution. Rather, only a Christian chaplain will be able to be present in the chamber. Eleventh Circuit: We are "exceedingly loath" to second guess corrections officials, but this looks an awful lot like favoring one religion over another and thus a violation of "the heart of the Establishment Clause." Delay the execution. Supreme Court (over a dissent): The inmate waited far too long to seek relief. He can be executed. (Ed. note: And he was.)
- Man who's high on drugs exposes himself, wields knife menacingly on streetcar. The streetcar empties. The man declines repeated orders to drop knife, advances toward police officer. The officer shoots him (three times), including a fatal shot to the heart. Officer: And then the man tried to get up, so I shot him again (six times). Video: The man did not start to get up. Jury: The officer is not guilty of murder (for the first volley of shots), but he is guilty of attempted murder (the second volley). Court of Appeal for Ontario: No need to reconsider the verdict or the officer's six-year sentence.
Tracy McGlothian, an experienced seamstress who also has an MBA, wants to teach students how to sew for a living (rather than as a hobby). But Virginia forbids Tracy from doing that without first obtaining a vocational school license, which is no easy task. The application process is byzantine and expensive. And officials have repeatedly rejected Tracy for no defensible reason. So last summer, Tracy and her husband, Jon, sued the state under the First Amendment. And in January, a federal magistrate judge ruled the case should go forward. Click here to read more.