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.
New on the podcast: A special live Third Circuit edition featuring Matthew Stiegler, appellate litigator and proprietor of the magnificent CA3blog.com, as well as Penn Law Professors Claire Finkelstein and Mitch Berman. Click here for iTunes.
- Pennsylvania state senator uses gov't-funded legislative staff to do campaign work, which is not legal. (Her sister, a state Supreme Court justice, also uses the senator's staff to do campaign work.) At trial, the now-former senator introduces forged evidence. The judge declares a mistrial. After a second trial, she is convicted on an array of charges, including forgery. Double jeopardy? Third Circuit: No.
- Allegation: For many years, Houston officials failed to test rape kits, which allowed serial rapists to commit additional crimes. Fifth Circuit: But the city has been trying to get its act together since 2013, so this suit, filed in 2017, is barred by one-year and two-year statutes of limitations.
- Dallas police officials determine that detective "entered inaccurate and incomplete information" in probable cause affidavit to obtain arrest warrant for murder suspect. (The arrest warrant relied on an eyewitness who wasn't sober, told inconsistent stories (including saying his mother was at the crime scene), and was so distressed he tried to strangle himself with his own shirt, all of which the detective neglected to share with the judge.) Can the suspect, against whom all charges were dropped, sue the detective for false arrest? Fifth Circuit: Qualified immunity.
- Ohio law prohibits doctors from providing abortions when they know the woman's reason is because the baby has Down syndrome. Sixth Circuit: Women have an absolute right to choose whether to terminate or continue a pre-viability pregnancy. Dissent: We're supposed to analyze the law using evidence and considering gov't interests at stake, not just nod to the legal standard with conclusory rhetoric.
- Allegation: Inmate at the Genesee County, Mich. jail is blinded by pepper spray before two deputies march him down a hall and slam him into doors and walls. Excessive force? Deputy: Sure, I was one of the two officers who marched him down the hall, but the inmate can't say whether I was the one who did the door- and wall-slamming. Because, you see, he was temporarily blinded by the pepper spray. Sixth Circuit: Not so fast. The question of the deputy's involvement must go to a jury.
- "This court once observed, '[w]hen a party comes to us with nine grounds for reversing the district court, that usually means there are none.' [Plaintiff] comes to us with twenty-seven." So writes Judge McKeague of the Sixth Circuit, affirming the district court.
- On duty, out-of-uniform Detroit police officer barges into acquaintance's home to collect a $300 personal debt. Fingers are pointed, mace is sprayed, and the officer fires her service revolver, grazing a second occupant of the home. No dice on the occupants' federal constitutional claims, declares the Sixth Circuit. The officer's behavior "was the definition of the ancient concept of 'frolic.'"
- Chicago film studio claims a state agency violated its rights by steering grants and business to its rival. An equal protection problem? The Seventh Circuit says no—because the rival studio was way, way better.
- Reality show contestant sues rapper for sexual battery after he gropes, exposes her privates to a crowd at a bar. The rapper doesn't show up for trial, disparages the contestant on social media "in exceedingly vulgar terms." The jury returns a $7.1 mil verdict against him. Rapper: The trial judge wrongly allowed the jury to watch a video of me threatening (in front of the show's cast and film crew) to strangle the contestant. I should get a new trial. Seventh Circuit: Not so.
- Two teenagers camping in Yosemite National Park campground are killed when a tree limb falls on their tent. Can their parents sue the feds for negligence? Two-thirds of a Ninth Circuit panel says yes; could be park officials knew or should have known the tree was a hazard.
- Inmate cuts his ring finger, develops gangrene, and has the finger amputated. He sues in Kansas court without the benefit of counsel; his case is dismissed because he did not first notify the municipality, Wyandotte County, of his impending suit as required by state law. Tenth Circuit: And while he pursued his claim in state court, the deadline to sue in federal court came and went. So he can't sue here either.
- In 2001, Justice Antonin Scalia famously asked, "What is golf?" This week, the Tenth Circuit took up the case of the late pro Moe Norman and his famous "single plane" swing. [Practice tip: If external circumstances force you to give up on a case, DO NOT concede that your opponent is the prevailing party.]
- Retailer seeks permission to sell sex toys at Gwinnett County, Ga. store, but officials demur. The retailer sues, shenanigans ensue. The county repeals the adult entertainment ordinance and replaces it with a new one. District Court: The case is moot. Eleventh Circuit (2016): Not entirely; the retailer may pursue damages under the old ordinance and should probably be able to challenge the new ordinance. Meanwhile, the county seeks to enjoin the sale of the toys in state court. District Court: Aha! You can't sue in federal court while a state enforcement proceeding proceeds. Eleventh Circuit (2019, over a dissent): The retailer's suit, which has been going on for over four years, was far enough long that Younger abstention doesn't apply.
- Man declines to speak with police, retreats from his porch back into the living room, where a Santa Rosa County, Fla. officer follows, tackles, and arrests him. False arrest? District court: Could be failing to talk to the officer was a misdemeanor offense (resisting an officer without violence). Qualified immunity. Eleventh Circuit: Reversed. Even if the officer had probable cause to make an arrest, he needed a warrant to enter the home without consent.
- Man sells cocaine to undercover cops. A search of his Myrtle Beach, S.C. home yields more drugs and just over $20k in cash. And state law permits law enforcement agencies involved in a forfeiture to reap 75% of the proceeds, so can the cops keep the cash? South Carolina trial court: No dice. The forfeiture statutes violate the Eighth Amendment's prohibition on excessive fines and the due process protections safeguarded by both the Fifth Amendment and the South Carolina Constitution.
- Per Hailey's Law, Washington state police are required to impound a vehicle any time they arrest the driver for a DUI, regardless of whether the car is off the road or someone else can safely drive it away. But that violates the state's constitution, explains the Washington Supreme Court, because warrantless seizures require individualized consideration of the circumstances. This law eliminates that individualized consideration, and the legislature cannot legislate constitutional rights away. (IJ signed on to an amicus brief urging the court to reach this holding.)
- And in en banc news, the Fourth Circuit will reconsider its ruling that Maryland and D.C. lack standing to sue President Trump for violating the Constitution's Emoluments Clauses by maintaining an ownership interest in various hotels and other businesses that provide him with millions of dollars from foreign and local gov'ts.
Late last year, Oregon engineer Mats Järlström scored an important First Amendment victory against the state's engineering board. Mats, who has a degree in electrical engineering, had done some research and concluded the math behind how the state's yellow traffic lights were timed was incomplete. When he presented his findings, the engineering board investigated him for two years and then fined him $500 for daring to talk about math without a license from the board. In 2018, a federal judge put a stop to that. And last month, Mats got a second round of vindication when, based on his findings, a team of engineers and activists persuaded the Institute of Transportation Engineers to reevaluate its guidelines. Click here for more.