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.
Friends, the national platforms for both the Democratic and Republican Parties call for reforming civil forfeiture, that stain on the Constitution and the nation's very moral fiber. Happily, a bill that would correct some of the worst abuses was reintroduced this week in Congress. Among other improvements, the FAIR Act would eliminate the direct financial incentives to seize and forfeit property. Click here to learn more.
- Production company hires union labor after Boston officials allegedly threaten to withhold permits for music festivals. District court: Can't try the officials for extortion because they didn't obtain any personal benefit; the alleged benefits went to the union. First Circuit: The indictment should not have been dismissed.
- Bank charges account holders up to $90 for overdrafts. An illegal "usurious" interest charge? The First Circuit says no; overdraft fees are not considered interest under the relevant statute or its implementing regulations. Dissent: When a bank covers an overdraft and the account holder doesn't make good on the balance, then that's pretty much a loan, and the overdraft fee is interest. Plaintiff should have been allowed to do some discovery.
- Exeter, N.H. police search apartment, find child porn on laptop owned by one of the residents; he's convicted of knowing possession. But wait! He has two roommates, the laptop was kept in a common room and not password protected, and there's no evidence that he used the laptop around the time the pornography was downloaded. And he took no steps to hide the laptop or destroy the files despite having approximately 15 minutes to do so. Enough evidence for a conviction? First Circuit: Most certainly not.
- FBI agents suspect that child porn is being downloaded/shared on a computer in a house in Cabo Rojo, P.R. Rather than get a warrant, they show up and ask to inspect the computers in the house, claiming that one of them is "sending a signal and/or viruses to computers in Washington." The residents consent to a search, the FBI finds child pornography, and, some days later, arrests one of the residents. Was lying to secure consent for the search a Fourth Amendment violation? First Circuit: Yes, and a clearly established one at that.
- Boy meets boy, boy dates boy, boy dumps boy: The story plays out every day in New York City. But this time the angry ex allegedly set up fake profiles for his former partner on dating app Grindr. A stream of men looking for sex or drugs—some 1,100 total—show up at the former boyfriend's home and work. A hundred complaints to Grindr do nothing. Nonetheless, Grindr isn't liable, holds the Second Circuit. Federal law says web services aren't responsible for content made by users.
- LSU education professor offers advice to students, gets fired. A violation of academic freedom? The Fifth Circuit says no. "We agree with the district court here that Dr. Buchanan's use of profanity and discussion of her sex life and the sex lives of her students was not related to the subject matter or purpose of training Pre-K–Third grade teachers."
- Federal district court: Mississippi State Senate District 22 will be redrawn to properly enfranchise its African-American voters. And that decision, says the Fifth Circuit, will go forward if the state doesn't get its act together. Editor's note: Come for a discussion of a crucial "the" in the Voting Rights Act, stay for a history of cotton in the Mississippi Delta. And check out the dissent criticizing the "majority-minority panel." (The Short Circuit staff takes that to be a voting pun about how the en banc court would come out the other way. Some Twitterati, however, see a lament that judges appointed by Presidents Clinton and Obama got their way on a court with mostly Republican-appointed judges.)
- Officer allegedly lies to obtain arrest warrant. Officer: Even if I did lie, I had probable cause for a warrantless arrest of plaintiff for a different crime, so I can't be sued for false arrest. That's not how the Fourth Amendment works, says the Fifth Circuit, in a lawsuit stemming from a grade-change scandal at a Brownsville, Tex. high school. While this officer gets qualified immunity, henceforth it is clearly established that an officer arresting someone on the basis of a bad warrant cannot later point to other probable cause to get off the hook.
- Texas corrections officials refuse Buddhist inmate's request to have a Buddhist priest present at his execution, though a chaplain would be available to a Christian or Muslim. Fifth Circuit: The inmate waited too long to seek relief. He can be executed. Supreme Court: Not without a Buddhist priest in the execution chamber. (Click here for educated guessing on why the Supremes recently denied a stay in a similar case.)
- Allegation: Three innocent men spend decades in prison for 1975 murder after Cleveland police coerce 13-year-old into providing false testimony. (It seems detectives often manipulated evidence before turning it over to prosecutors. According to one officer: "It wasn't about what was fair, it wasn't about what was honest, it was about winning.") Sixth Circuit: No qualified immunity for the only officer still living, and new circuit precedent means claims against three deceased officers might be able to go forward against their estates. Moreover, the city could also be liable if it's proven there was a policy of withholding evidence that should have been turned over to the defense.
- In February 2015, the San Francisco Sheriff's Dep't adopts policy not to honor requests from ICE to be notified in advance about the release of undocumented aliens without a court order. In March 2015, ICE asks to be notified before the release of five-time deportee who'd served a 46-month drug sentence. Per the policy, the deportee is released without notice to ICE. Shortly thereafter, he steals a gun and kills a woman. Can the City and the Sheriff by held liable by the victim's parents? Ninth Circuit: These are tragic facts, but California law grants immunity to the government defendants.
- Police respond to a call, discover Thornton, Colo. man pacing in driveway, swinging baseball bat, yelling. While one officer returns to his car to obtain a non-lethal beanbag shotgun, two other officers pursue the man, draw their weapons (one a gun, one a taser), direct him to drop his bat. When he does not, they both fire. The man dies. Excessive force? Tenth Circuit (over a dissent): Could be. No qualified immunity.
- Accountant is caught insider trading. He turns over $69k in profits to the SEC, plus an additional $109k penalty, and is banned from practicing accountancy before the SEC. But that's not all. The DOJ seeks criminal penalties for the same misconduct. Double jeopardy? The Eleventh Circuit says no. The SEC penalties were civil, and the Double Jeopardy Clause only protects against repeated criminal penalties.
- Illinois state law allows family members of people who overdose to sue anyone within a given geographic area who sold or distributed the same kind of drug. Illinois Supreme Court: It violates due process for a plaintiff to recover a lot of money from a person who had no connection at all to the drug user. Dissent: Although the law "pushes the boundary of civil liability by dispensing with traditional notions of causation," we're meant to be more deferential to the legislature under the rational basis test.
- NYC officials say a state ban on exotic and rare "gravity knives" applies to common folding knives that can be opened with the flick of wrist. Second Circuit (2018): The law is not unconstitutionally vague in all its applications. SDNY (2019): But for this plaintiff, who was previously arrested for carrying a folding knife and would like to carry one again without fear of arrest, the law is indeed unconstitutionally vague. "Because the wrist flick test is a functional one, it is difficult if not impossible for a person who wishes to possess a folding knife to determine whether or not the knife is illegal." (We talked about gravity knives on the podcast some time back.)
Sick of billable hours? IJ is hiring! We're seeking attorneys with 2–6 years of litigation experience. And we need a director for the Center for Judicial Engagement (who would be a member of the elite Short Circuit staff). We're also looking for a graphic designer. Plus, our activism team (which just in the past few weeks has thwarted eminent domain abuse, scored a huge win for food freedom, and documented the insane red tape entrepreneurs face in D.C.) is hiring too. Click here to look at all of IJ's employment opportunities.