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.
"Until now, the excessive-fines clause in the Constitution's Eighth Amendment had languished in obscurity, the Rodney Dangerfield of constitutional rights," IJ's President Scott Bullock and Legislative Analyst Nick Sibilla wrote this week in The Atlantic. But after the U.S. Supreme Court issued its landmark decision in Timbs v. Indiana, the clause can finally get some respect. A resuscitated excessive-fines clause, they assert, could rein in civil forfeiture, municipal fines, and other forms of policing for profit. Read the whole thing here.
- Black man convicted of Shreveport, La. murder by all-white jury spends nearly 30 years on death row, in solitary confinement before he's exonerated. Allegation: Law enforcement fabricated evidence, withheld exculpatory evidence, among other misdeeds. (The lead prosecutor has since apologized.) The defendants answer the complaint but later move to dismiss it. District court: It's too late to try to dismiss. Fifth Circuit: And it's too early to appeal that ruling. Go deal with the merits of the case.
- Woman says she was raped by a Shreveport, La. police officer after he asked her to come in to the station. So can she sue the police chief? Fifth Circuit: Not when she didn't give details on how the chief was involved. The only evidence against him was speculation based on a third officer's refusal to testify.
- Motorcyclist twice evades police, flies down US-183 outside Cisco, Tex. at over 100 mph. An officer driving an SUV ahead of the motorcyclist slows down—from 100 mph to 50 mph in seven seconds—to block the way. The cyclist slams into the SUV and dies. Fifth Circuit: And his claim slams into qualified immunity.
- Karnes County, Tex. man goes to rival's granddaughter's elementary school during pickup, pantomimes shooting the rival. He's arrested for harassment. But wait! Maybe it never happened. He says he wasn't at the school that day: The sheriff's department trumped it up for political revenge. So can he sue the head honchos at the sheriff's office? Fifth Circuit: Not when he didn't give details on how management was involved.
- Ohio distributes gov't money to nonprofits to address public health issues, but the money cannot go to any organization that provides or promotes "nontherapeutic abortions." (The money has long been prohibited from directly funding abortions.) Sixth Circuit (last year): Which is not OK, as it requires the surrender of constitutional rights to participate in an unrelated gov't program. Sixth Circuit (en banc): Nay nay. There is no freestanding right to perform an abortion, only the right of a woman to obtain one. Because this law affects only the former, no one is forced to sacrifice constitutional rights to obtain funding, and the law stands.
- Taylor, Mich. officer pulls over driver, decides to go easy on her and tickets her for a non-moving violation. The driver, proving that no good deed goes unpunished, gives officer the finger as she drives away. The officer, proving that no insult to a police officer goes unpunished, pulls driver over again, upgrades ticket to a moving violation. Sixth Circuit: No qualified immunity for the officer; the second stop violated clearly established rights under the First and Fourth Amendments.
- "Hermann Göring, head of the Luftwaffe in World War II, remarked: 'When I saw those Mustangs over Berlin, I knew that the war was lost.'" So begins the Seventh Circuit in its lesson on why, if you suspect someone has stolen your P-51 Mustang fighter, you should sue promptly rather than wait 30 years.
- Indiana law makes it a felony to acquire, receive, sell, or transfer the "tissue, organs, or any other part of an aborted fetus," which Hoosier professors challenge as interfering with their medical scholarship. District court: The words "acquire," "receive," and "transfer" are unconstitutionally vague, as is the phrase "any other part." Seventh Circuit: Which would make much of the legal system invalid, as those words are ubiquitous. The law stands. Judge Hamilton, dissenting: When both the gov't lawyers and the authoring legislators run away from the apparent meaning of statutory language, there's a vagueness problem (which presents both due process and separation of powers issues).
- Thanks to a quirky interaction among the bankruptcy code, the N.D. Illinois' bankruptcy practice, and Chicago parking ordinances, Chapter 13 debtors rack up thousands in parking fines with no way for the city to collect. Seventh Circuit: "Immunity from traffic laws for the duration of a Chapter 13 plan does not seem to us an outcome plausibly attributed to the Bankruptcy Code."
- Illinois requires homeless sex offenders to report to law enforcement weekly, but those with fixed residences need report only quarterly. Tired of weekly updates from homeless people, some Chicago cops instruct them to list shelters as their fixed residences—knowing full well that the registrants don't reliably live there. But a schism lurks! Other police officers dislike that approach and arrest homeless people who list fictitious residences. Caught in the bureaucratic crossfire, one such offender finds himself arrested and jailed for 17 months before being acquitted. And his due process claim is not barred by the statute of limitations, says the Seventh Circuit, so it can proceed.
- Decatur County, Iowa sheriff allegedly sexually harasses staff, resigns. The new acting sheriff fires the former sheriff's wife, who had worked in the department. Can she sue the acting sheriff for violating her First Amendment right to intimate association? The Eighth Circuit says no; he wasn't trying to poison her marriage; he was trying to prevent a hostile work environment.
- Santa Monica, Calif. passes law allowing "home-sharing" (rentals where residents remain on site with guests) but forbidding the sort of short-term rentals pioneered by Airbnb and HomeAway.com. Airbnb and Homeaway.com: The city is requiring us to monitor and remove third-party content from our platforms, hence violating the Communications Decency Act and the First Amendment. District court: Dismissed. Ninth Circuit: Just so. The city is merely restricting the companies' internal booking transactions, which falls outside the CDA. No dice on the First Amendment claim for similar reasons.
- Uniformed Kansas City, Kan. police officers in two separate squad cars activate their roof lights; one officer gestures to man in a parked car to exit his vehicle. Would an ordinary person feel free to leave in those circumstances? The Tenth Circuit says no, so the man was seized and the Fourth Amendment applies.
- Allegation: After a driver is pulled over for speeding and refuses a search of his vehicle, Miami police arrest driver and leave him in intentionally painful handcuffs for more than five hours, leading to permanent nerve damage and loss of sensation. Eleventh Circuit: We've granted qualified immunity in other handcuff-injury cases, but none of those involved injuries this serious to a compliant arrestee. The officer should have known better, so no immunity for him.
- DeKalb County, Ga. deploys 36 officials—some wearing army fatigues and masks—to launch an unannounced, profanity-laced raid on . . . a strip club. At 5 p.m. For the sole purpose of checking the dancers' permits. Which was pretty over the top, says the club—not least because the club's colitis-ridden owner was handcuffed and forced to soil himself. Definitely over the top, agrees a jury: The county violated the Fourth Amendment and must pay over $10k. And we will not disturb that verdict, says the Eleventh Circuit. "Administrative inspections" of strips clubs are constitutional as a general matter, but the jury reasonably found that this particular sh*tshow (paraphrased) was unreasonable in scope and execution.
This week, the Minnesota Supreme Court ruled that property owners who assert their innocence are entitled to a prompt hearing after their property is seized. Police seized Helen Olson's car after a traffic stop, and prosecutors kept it for 18 months without giving Helen (who wasn't in the car when it was taken) an opportunity to seek judicial review of the seizure. Not good enough! Said the court: "Due process is not satisfied by a rule that allows a person's property right to turn on the whim of a prosecutor." IJ filed an amicus brief urging the court to take this course of action. Says IJ attorney Jaimie Cavanaugh: "This decision is a victory for the rights of Minnesotans who have done nothing wrong but still see law enforcement seize and hold their cars, cash or other property for months or years. It only makes sense that innocent owners should be granted a hearing within days of law enforcement seizing their property. Because of this result, there will now be additional scrutiny on law enforcement practices that amount to policing for profit."