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.
- Suppose a La Plata, Md. public school teacher compelled a Christian student to write part of the Shahada: "There is no god but Allah and Muhammad is the messenger of Allah." First Amendment violation, right? Fourth Circuit: It was homework for a world history class. About what Muslims believe. Judgment for the school.
- Allegation: Rumor spreads at Sterling, Va. warehouse that an employee was promoted only because of her sexual relationship with a higher-ranking manager. The highest-ranking manager at the facility helped to spread the rumor, barred her (but not her paramour) from attending a mandatory all-staff meeting where the rumor was discussed, and told her he'd no longer recommend her for promotions. She's later fired. Fourth Circuit: Because "traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society," she might very well have suffered harassment because she is a woman. The case shouldn't have been dismissed.
- Using Sherlock Holmesian powers of deduction (unbalanced tire, worn lug nuts, nervous driver), police officer suspects drug trafficking is afoot. He touches the suspicious tire, which feels (and is) suspiciously full of meth. Fifth Circuit: And under the revived property rights theory of the Fourth Amendment, touching the tire was a search (but the driver is still going to jail).
- Female nursing assistant at Pascagoula, Miss. assisted living facility is daily subjected to lewd and sexually violent behavior by a dementia patient. When she voices concerns to facility higher-ups, they invite her to "put [her] big girl panties on and go back to work." After she's fired, she brings Title VII suit against the facility. And her hostile work environment claim can go to trial, says Fifth Circuit.
- Vacant-property owners in Saginaw, Mich. must register their properties with the city; the registration form states that an owner must allow the city to enter her property if it becomes dangerous. Does this system unconstitutionally require an owner to waive her Fourth Amendment rights? Sixth Circuit: Nope. The Fourth Amendment allows warrantless searches of dangerous buildings provided there's a pre-search hearing to determine whether the building is dangerous.
- Upon returning to his Detroit, Mich. basement apartment, man finds it ransacked. Storming upstairs, shouting expletives, he encounters a stranger who shoots him three times. Yikes! Turns out it was a federally deputized member of the Detroit Fugitive Apprehension Team task force, on the hunt for a fugitive. Man sues task force members for excessive force and other alleged misdeeds. Officers: Actually, we shot him only after he pulled his own gun on us. Which, says Sixth Circuit, is precisely the kind of factual dispute that must be resolved at trial. No qualified immunity.
- In 2013, a chaplain with the Michigan Department of Corrections tells Muslim inmate that he can't attend Eid al-Fitr, a religious feast marking the end of Ramadan. Chaplain tells inmate he's the wrong kind of Muslim and can attend the feast only if he changes his religion. Access to the feast is allegedly denied again in 2014. Inmate sues, asserting First and 14th Amendment violations. Qualified immunity? No, says Sixth Circuit—not least because a court in a different case "had already issued a binding order enjoining these defendants from preventing Muslim inmates to participate in Eid." And "reasonable officials follow court orders."
- Pro-life sidewalk counselors are prohibited from approaching within eight feet of any person in the vicinity of Chicago abortion clinics if their purpose is to counsel, provide literature, or protest. Seventh Circuit: Well, the law is nearly identical to a Colorado law upheld by the Supreme Court in 2000, and even though that case is hard to reconcile with more recent Supreme Court cases, it has not been overturned. The law stands.
- "Scabby the Rat has returned." Scabby—a giant balloon rodent evoking a Nutcracker nightmare—often pops up at union protests, including one in Grand Chute, Wis. in 2014. That is, until the town ordered deflation under the local sign code. Seventh Circuit: Which was OK. The sign code was content neutral and enforced fairly. (Real hypo from trial: Would Scabby count as a holiday decoration if he had a Santa hat?)
- Drug defendant is shackled during pretrial hearings because that's what Central District of Illinois court security thinks is safest—as a blanket rule, for every detained defendant. Which means chained wrists, chained ankles, and a chain between them. The defendant, on interlocutory appeal: The judge can't do this without deciding that I, specifically, am dangerous. Seventh Circuit: Meh. Come back after you're convicted. Dissent: This indignity diminishes the courts. And how is he going to get effective review later?
- Website Zillow uses an algorithm to generate "Zestimates" of home values based on the home's location, the selling price of nearby parcels, and other factors. Given the 100 million properties for which Zillow creates Zestimates, the company does not inspect whether houses have special features that might make them more (or less) valuable than the estimate. Plaintiffs, dissatisfied with the Zestimates on their homes, sue Zillow, claiming that the Zestimates have made it more difficult for them to sell the homes at their real value. Seventh Circuit: Zout of luck. Zestimates "are opinions, which canonically are not actionable" under the deceptive trade practices law the plaintiffs invoked.
- Rarely do an opinion's opening sentences double as a Short Circuit entry. The Seventh Circuit shows everyone how it's done: "Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence? We hold that the answer is no."
- DHS Secretary suspends various laws to permit replacement of segments of border fencing (or, y'know, whatever you prefer to call such physical barriers). Ninth Circuit: Which was entirely within the Secretary's statutory authority.
- Golden Beach, Fla. police officers submit sketchy timesheets: They might be getting paid twice for the same hours. They're arrested for fraud, but eventually the charges are dropped. They sue. Was the application for the warrant to arrest them deliberately missing exculpatory info? Eleventh Circuit: Doesn't matter. The info wasn't that exculpatory.
- Two African-American couples were murdered in Walton County, Ga. in 1946, as a large crowd of people looked on in what is considered to be the last mass lynching in American history. A grand jury was convened, but no one was ever charged even after 16 days of witness testimony. Seven decades later, can the transcripts be released to a historian? Eleventh Circuit: Yes; though grand jury records are usually kept under seal forever, these can be released as a matter of exceptional historical significance. Dissent: The rules clearly prohibit the disclosure of these materials. Imagine the harm that might come to descendants of the suspects, witnesses, and grand jury members when all is revealed.
- And in en banc news, the Ninth Circuit will reconsider a ruling that the Second Amendment prevents Hawaii County, Hawaii from banning the open carry of handguns.
Last month, the Food and Drug Administration closed a public comment period over whether it should continue to allow plant-based products to use words like "milk" and "cheese" in their labeling. But such a crackdown would "confuse consumers, harm small businesses across the country, and raise serious First Amendment concerns," IJ argued in a submitted comment.