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.
Last month, federal auditors revealed the DEA had secretly spied on Americans who bought money counters. With a reach so expansive it alarmed even the FBI, this sweeping surveillance program helped the DEA seize over $50 million in cash and real estate. Yet auditors found "the vast majority" of those under surveillance "were never shown to be connected to illicit drug-related activities." Over at Forbes.com, IJ's Nick Sibilla has more.
- While presiding over the Department of Justice's military prosecution of the alleged mastermind of the U.S.S. Cole bombing, this Air Force Colonel was simultaneously gunning for a job as an immigration judge with . . . the Department of Justice. An improper appearance of bias? D.C. Circuit: Indubitably. All 460 of his written orders in the case are vacated. Be more careful next time.
- Eight voting citizens of Greensboro, N.C. successfully challenged a 2015 law that redrew their City Council district and got an injunction prohibiting the County Board from enforcing the law. Can they recover their attorney's fees from the Board? District Court: The Board didn't write the law, it declined to defend the law, and it stipulated to a bunch of facts to streamline the litigation; special circumstances justify denial of fees. Fourth Circuit (over a dissent): Fee awards are about compensating the attorneys, not punishing bad actors. Pay up.
- Hattiesburg, Miss. doctor might be overprescribing opioids. So the medical board gets an administrative warrant and allegedly sends nine agents to his office to search through medical records. They allegedly detain him for hours, often at gunpoint. One delivers the charming line "[i]f you don't sit down I will put you down." Fifth Circuit: That's unreasonable for an administrative search. And now that we've settled that—qualified immunity!
- Abilene, Tex. prison guards seek to extract from his cell a prisoner who prefers to stay. Guards contend they used the minimum force necessary, which involved spraying a chemical into the cell and restraining the prisoner's arms and legs. The prisoner contends it was much worse—after guards handcuffed him on the floor, they punched him, squeezed and twisted his genitals, and stuck a finger in his anus. Video fails to allay confusion. Fifth Circuit: Could be excessive force. Need a trial to figure that out.
- El Paso, Tex. police respond to 911 call at dusk, discover unarmed man in the process of hanging himself from basketball hoop. Police demand he show his hands. When he fails to comply, they tase him, and he immediately goes limp. They remove him from the hoop and begin CPR, but he dies at the hospital. District court: No qualified immunity. Fifth Circuit: If the officer wanted us to address the question of whether he had qualified immunity, he should have briefed it. He didn't (he addressed other issues in his brief instead), so the case can go on.
- Hunt County, Tex. sheriff's dept.: Welcome to our Facebook page; please say only nice things about us or we will ban you. Fifth Circuit: Well, that's called viewpoint discrimination, and it's generally frowned upon.
- In June 2016, Omar Mateen pledged his allegiance to ISIS, entered the Pulse Night Club in Orlando, Fla. and opened fire, killing 49 people and injuring another 53. Can the victims and their family members bring suit under the Anti-Terrorism Act against Twitter, Facebook, and Google for providing the platforms through which Mateen became self-radicalized? Sixth Circuit: "We sympathize with Plaintiffs—they suffered through one of the worst terrorist attacks in American history. 'But not everything is redressable in a court.'"
- It's nearly impossible for out-of-staters to get a concealed-carry permit in Illinois. Only residents of Arkansas, Mississippi, Texas, and Virginia can do it because those are the only states that do the kind of criminal and mental health reporting that Illinois is comfortable with. Is that constitutional? Seventh Circuit (2016, over a dissent): Yup. Gun rights are limited. Seventh Circuit (just now, in the same case, over the same dissent): Still true.
- Immigrant from Iraq is detained for a year and a half while an immigration judge decides whether to send him back to the Middle East. The man sues to get out of custody. District judge: He's locked up under a statute that operates only for the time reasonably necessary to get a decision. A year and a half is too long. Let him out. Eighth Circuit: Those words are not in the statute. But the district court should address the man's constitutional claims. [Ed. note: If there's time. Because—well—there's a preliminary order to send him back to Iraq.]
- A trio of California laws meant to protect immigrants from the feds go into effect, says the Ninth Circuit. No preliminary injunction to stop law that requires employers to notify employees before federal immigration inspections. No preliminary injunction (for the most part) for state-imposed inspection requirements on facilities that house certain federal detainees. And no preliminary injunction for law that limits state and local law enforcement from cooperating with the feds, even though it "may well frustrate the federal government's immigration enforcement efforts."
- Jury rules for defendants. Judge 1 throws out verdict, grants judgment as a matter of law for the plaintiff. Defendants move to change the verdict back. Judge 1 says no. Defendants move to change the verdict back again. Judge 1 retires, and Judge 2 goes back to ruling for the defendants. Tenth Circuit: We're going with Judge 1 on this. Plaintiff wins.
- Opa-Locka, Fla. 911 caller reports man trying to get through window of a neighbor's house. Officers respond, see man matching the caller's description, point guns at him, handcuff him, pat him down, reach into his pocket, and find a single bullet. Eleventh Circuit (2018): The police were allowed to pat the man down to find a weapon, but they crossed the constitutional line when they reached into his pocket to get the bullet. Eleventh Circuit (en banc, by a 7–5 vote): No, no. His conviction for being a felon in possession of ammunition (and pistols discovered nearby) is affirmed. Judge Jordan, dissenting: The majority fails to adequately grapple with the man's originalist arguments. (More on that from Josh Blackman.)
Friends, this week IJ's Center for Judicial Engagement released Episode 5 of the Bound By Oath podcast, which dives tolerably deeply into the history and meaning of the Fourteenth Amendment. This episode: the Equal Protection Clause, featuring African-style hair braiders, Georgetown law prof and IJ alum Evan Bernick, and also space aliens in invisible and undetectable craft. Available on iTunes, Spotify, Stitcher, SoundCloud, Google Podcasts, Google Play, TuneIn, and other fine podcasting apps.