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.
For the first time in nearly two decades, Congress has reined in civil forfeiture. The Clyde-Hirsch-Sowers RESPECT Act—named after two IJ clients and signed into law this month by President Trump—curbs IRS seizures for "structuring." Under prior law, the IRS could seize bank accounts based on little more than the owner frequently withdrawing or depositing cash in increments of under $10k—no criminal charges necessary. The law now bars the IRS from seizing money wholly unconnected to crime, ending a Kafkaesque nightmare that had long bedeviled small-business owners in cash-heavy industries. Over at Forbes.com, IJ's Nick Sibilla has more.
- President Trump blocks from his Twitter account several Twitter users who criticized him or his policies. Which, the Second Circuit affirms, unconstitutionally barred them from a public forum because of their viewpoints.
- Pennsylvania woman purchases defective dog collar on Amazon.com. When it breaks, her dog's retractable leash snaps back and hits her in the face, leaving her permanently blind in one eye. The maker of the collar can't be located. Can she sue Amazon? The Third Circuit says yes—under both state and federal law. Dissent: The state law claims shouldn't go forward.
- Woman calls Baltimore police after her home is burglarized; the police beat her up. She sues, and the city folds, but the settlement agreement requires that she not discuss the case with the media. But wait! A city official is quoted in a newspaper insinuating the woman antagonized the officers. Several folks pipe up in the comments section in support of the police, and the woman responds (see here). The city withholds half of her $63k settlement. Fourth Circuit (over a dissent): Enforcing the non-disparagement clause would violate the First Amendment.
- Maryland and D.C. officials sue President Trump, alleging he's violating the Constitution's Foreign and Domestic Emoluments Clauses by maintaining an ownership interest in the Trump Organization while president. That "global business empire"—which includes the Trump International Hotel in D.C. (in which the president has a 76% interest), the Trump towers in Manhattan, and income from the international distribution of The Apprentice—provides him with millions of dollars from foreign and local governments. Fourth Circuit: Maryland and the District lack standing to bring this "extraordinary" suit against the president in either his official capacity or his individual capacity. (With some fun interlocutory appeal twists for those interested in such things.)
- Five Virginians obtain loans from tribal lender, which charges interest that is allegedly 50 times higher than the 12% allowed by state law. District court: Revenue from and control of the tribe's operation is too much in the hands of a nontribe member's company. The borrowers' suit can proceed. Fourth Circuit: Reversed. The tribe's role in the business is substantial and thus tribal sovereign immunity is warranted. It's for Congress—not the courts—to provide a remedy if it thinks the tribe's commercial activities are harmful. (Briefs here. Via Turtle Talk blog.)
- Battery in hoverboard purchased on Amazon.com starts fire, destroys Davidson County, Tenn. family's home; two children have to jump to safety from the second floor. The family obtains a default judgment against the maker of the hoverboard. Can the family sue Amazon? The Sixth Circuit says yes. Though the state products liability and consumer protection claims are out, the family can go forward on its tort claim that Amazon should've done more when it discovered the dangerousness of hoverboards.
- Ohio prohibits lawyers from directly or indirectly soliciting clients for workers' compensation cases. And that "total ban on solicitation," says the Sixth Circuit, violates the First Amendment.
- In the Sixth Circuit, Judges Thapar and Stranch debate the utility of corpus linguistics. That's the study of how language works through the examination of large datasets—say, looking in a database of millions of newspaper articles for examples of how a specific word is used. Judge Thapar sees a boon to textual interpretation; Judge Stranch wants the law to mostly steer clear. All this, friends, in an ERISA decision.
- Allegation: Michigan officers drag unresisting suspect from vehicle, beat him up. Sixth Circuit: The video doesn't show events too clearly, but what is recorded (for instance, a voice saying, "Take that baby!" when the suspect is tased) is enough to overcome qualified immunity. To a jury this must go.
- In 2016, for the first time ever, the feds charge a woman with manslaughter for prenatal negligence resulting in the death of a child after birth. As alleged, Agency Village, S.D. woman took triple the dose of a prescribed sedative, snorted hydrocodone, and possibly snorted cocaine shortly before giving birth. Her baby dies four hours after birth from the drugs. Eighth Circuit: That is indeed manslaughter. Judge Colloton, dissenting: The law's text must be read against the common law definition of manslaughter, which has never allowed prosecution of a mother for prenatal acts that harm a child born alive.
- Officials interview several sisters regarding allegations that their brother molested them. Officials promise (and state law requires) that the reports will remain confidential, but when a tabloid files a public information request, officials turn them over. (The family stars in a popular reality TV show.) Can the sisters sue Springdale and Washington County, Ark. officials? The Eighth Circuit says yes. No qualified immunity.
- In which the Ninth Circuit rules as a matter of law both that a trust beneficiaries' lawsuit is not barred by federal securities law and that the last season of Game of Thrones was bad.
- San Diego officer locates man matching description of suspect who was reportedly wielding a knife, exits his patrol car, and shoots, kills the man—without identifying himself, giving a warning, or activating his bodycam. The officer says the man was "aggressing" the car, but surveillance video tells a different story. (Turns out the man had a pen, not a knife.) Ninth Circuit: A jury might think that was an unreasonable use of force. Claims against the city can proceed as well.
- BASE jumper gets entangled in tree 150 feet off the ground. Yosemite National Park rangers take him to ground, where he is arrested. In pretrial brief, the gov't says the gov't must prove beyond a reasonable doubt that the jumper lacked a permit but at trial offers no direct evidence that he lacked a permit. Nevertheless, he's convicted; it was the jumper's burden to prove that he did have a permit. (Which, it seems, do not actually exist.) Ninth Circuit: Conviction affirmed.
- Allegation: In 2017, Alamogordo, N.M. police arrest 16-year-old, shoot out a press release with her mugshot and charges, which are then broadcast on the dept's Facebook page and local TV and are still available online. Yikes! State law forbids officials from publicizing juvenile arrest and delinquency records, but the dep't follows the law only for juvenile arrestees age 15 and under—and not 16- and 17-year-olds. Tenth Circuit: No qualified immunity for officers on her equal protection claim.
- Sandy City, Utah makes it illegal to sit or stand on unpaved or narrow medians. Which, claims panhandler, violates my First Amendment right to solicit drivers for money. Tenth Circuit (over dissent): No First Amendment violation here. The law makes no reference to speech, panhandling or otherwise. The record shows that the city's purpose was to prevent people from falling into traffic. And the law does a good enough job at furthering that public safety goal.
- Man pleads guilty to manslaughter, is sentenced to five years. Yikes! Including presentence incarceration, he's kept in Utah prison for seven years. A due process violation? The Tenth Circuit says no; so long as he's not behind bars for more than the statutory maximum (here, 15 years), everything is a-ok.
- Allegation: Suspect wanders into yard where six children are playing. Coffee County, Ga. police order everyone to ground, press guns against the children's backs. One officer shoots twice at nonthreatening dog. He misses but does hit a 10-year-old, who was lying face down an arm's length from the officer. Excessive force? Eleventh Circuit (over a dissent): Qualified immunity. No prior cases telling officers not to unintentionally shoot innocent bystanders. (Nor does this decision establish such a precedent.)
- Thanks to centuries of tradition, it's constitutional for local gov'ts to open their meetings with a religious invocation. But what if the gov't excludes prayers from minority religious groups? Let's see what Brevard County, Fla. officials have to say about who's allowed to give invocations there: Muslims? "I guess." Rastafarians? "Don't have any idea what that is. But I would say no." Deists (such as Thomas Jefferson and Ben Franklin)? Nope, it has to be "a God-fearing religion." Eleventh Circuit: It does not, in fact, have to be that.
- And in en banc news, the Ninth Circuit will reconsider its decision permitting the feds to impose new rules that forbid health providers that receive Title X funds from referring patients seeking family planning services to abortion providers. The Ninth Circuit will not, however, reconsider its decision reinstating an Alien Tort Statute lawsuit seeking to hold chocolate makers responsible for alleged child slavery on cocoa farms in the Ivory Coast. (Eight judges dissent to the denial of en banc rehearing.)
New on the Bound By Oath podcast: procedural due process! We trace the history of this safeguard against arbitrary government from Magna Carta to present day. And then we head to Harris County, Texas, which operates the third largest jail in the country, to see why federal courts say its system of money bail violated that ancient guarantee. Featuring, among others, Alec Karakatsanis of Civil Rights Corps and Megan Stevenson of the Antonin Scalia Law School—and available on fine podcasting apps everywhere.