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.
Two businessmen suspected of but not charged with illegal gambling say that Fresno, Calif. police seized $225k in cash and rare coins while executing a search warrant—and that the loot never made it to the evidence room. Does this kind of allegation give rise to a Section 1983 claim? Curiously, the Ninth Circuit recently said no. IJ and seven other nonprofits have thus signed on to an amicus brief urging the court to reconsider en banc. IJ's Nick Sibilla has more over at Forbes.com.
- After the NYPD arrested Luis Hernandez for public lewdness, a Department of Homeland Security officer (named, truly, "Outlaw") issued an immigration detainer against him. Whoops! Mr. Hernandez is a U.S. citizen born in Brooklyn. DHS was looking for Honduran citizen Luis Enrique Hernandez-Martinez. False imprisonment or a reasonable mistake? Second Circuit: Hernandez is the 11th most common surname in the United States. A reasonable officer would have taken a closer look at the discrepancy between the names.
- New Jersey family court refuses to reduce Surender Malhan's child support obligations even though he now has primary custody of his children and his ex is making more money than he is. Will Surender surrender? Never! He sues in federal court. District Court: His claims are all barred by a variety of abstention doctrines. Third Circuit: What is it, the '90s? We don't do that anymore.
- African American man is charged with felony murder. At trial, his jury venire consists of 60 people, only two of whom are black. Ultimately, he is convicted of murdering a white man by an all-white jury. Seeking habeas review, he presents statistical data suggesting that although 10.7% of the community is black, only 4.9% of the jury pool is black. A Sixth Amendment violation? Third Circuit: We don't know if these numbers are reliable, so you lose. Concurrence: Even if these numbers are reliable, you lose. Dissent: The majority and concurrence have raised the bar for reliability and disparity so high that everyone will always lose.
- National bank sues former executive for alleged embezzlement. Executive responds with a letter-writing campaign to the bank's institutional shareholders, which he hopes will lead to a favorable settlement. The judge then orders a halt to the mailings. But wait just a minute, writes Bibas, J., for the Third Circuit: If the judge wants to get into the serious business of restricting litigants' speech, more analysis is required. Gag order vacated. [Bonus: Jump to CA3blog to learn why Judge Bibas' opinions reflect the best typography in the circuit.]
- Lackawanna County, Pa. transit officials thrice reject atheist group's request to run bus ads displaying the word "Atheists" (along with the group's name and website). Officials: We don't allow ads that are religious or atheistic. Which, affirms two-thirds of a Third Circuit panel—in open "disagreement" with the D.C. Circuit—violates the First Amendment. (We discussed D.C. Metro's ad ban on the podcast.)
- Jackson, Mich. police officer blunders into private apartment, promptly shoots the family dog. No qualified immunity, affirms the Sixth Circuit. Viewing the evidence in the dog owners' favor, the dog wasn't being unusually aggressive. So a reasonable officer would have known not to shoot him. (Requiescat in pace, Kane Lee Chaney.)
- How many times can an eye surgeon accidentally operate on the wrong eye before his surgical privileges are revoked? Three is the magic number at the Murfreesboro, Tenn. Veterans Affairs hospital. Sixth Circuit: And the revocation does not violate the due process of law.
- Allegation: Pretrial detainee is taken to Kane County, Ill. hospital after suicide attempt. He steals a gun from his guard, who hides and fails to warn anyone. The detainee takes nurses hostage. SWAT kills him three hours later. Can two patients (who were distressed but not physically harmed) sue the guard? The guard may be a "feckless coward," says Judge Easterbrook of the Seventh Circuit, but no. (The nurses' claims against a variety of defendants settle for $7.9 mil.)
- Landowner wants to drain water from wetlands on his South Dakota property so he can farm them instead. But wouldn't you know it—those "waterfowl production areas" implicate two different government agencies, and they think different things about which areas he can drain. The U.S. Fish and Wildlife Service sends him one map, and the U.S. Natural Resources Conservation Service sends him a different one. He follows the second map and is promptly prosecuted for not following the first. Eighth Circuit (over a dissent): His conviction can't stand. The jury wasn't told the offense requires at least negligence, and, given the conflicting maps, he might not have acted negligently.
- Allegation: While executing search of home pursuant to warrant, female IRS agent insists on accompanying woman to bathroom, views her naked body. (Her husband, the subject of the investigation and warrant, was able to use the restroom in peace.) In 2018, the Ninth Circuit held that the woman could sue the agent under Section 1983. But wait, doesn't that apply only to state officers? And wasn't the officer here federal? The Ninth Circuit in 2019: Oops, yes, but the agent can still be sued under Bivens, so it's fine.
- Wyoming motorist driving 74 mph on unpaved road (posted speed limit: 35 mph) loses control, dies. Insurance company: He died while committing a crime, speeding. So we need not pay out his accidental death benefits. (They do pay $247k in life insurance benefits.) Tenth Circuit: Sounds right. Dissent: Speeding is a traffic violation and not a crime under either state law or the insurance plan's informal guide.
- State game wardens cite man for fishing without a license at Adair County, Okla. pond. The wardens then learn he has an arrest warrant. The man flees. A warden tackles him into the pond and shoots him dead after a brief struggle. Tenth Circuit: Qualified immunity.
- Allegation: Florida is unnecessarily institutionalizing medically fragile kids. Can the feds sue the state under Title II of the Americans with Disabilities Act? District Court: No. Titles I and III expressly give the feds a cause of action, but Title II says it's creating only a private cause of action. Eleventh Circuit (over a dissent): Reversed. There's enough cross-referencing going on among the various titles.
- Habitat for Humanity declines to sell home to quadriplegic man because the $9k/year he receives in disability benefits does not meet the nonprofit's minimum income requirement of $10k/yr. Eleventh Circuit: Which might violate fair housing laws. Habitat must explain why it doesn't count money the man receives from his family in addition to his disability benefits.
- And in en banc news, the Seventh Circuit will reconsider its decision nullifying a jury verdict that ordered Polk County, Wisc. to pay $4 mil to inmates who were sexually assaulted by a corrections officer. (IJ urged this course of action in an amicus brief.) The D.C. Circuit, however, will not reconsider its decision to revive the due process claim of a Yemeni citizen held at Gitmo for 17 years with no charges on the basis of undisclosed classified evidence. (Judges Henderson and Rao dissent.)
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