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.
This week, the Indiana Supreme Court articulated a new test for determining when fines and forfeitures are unconstitutionally excessive—a test that we advocated for and that requires judges to evaluate (among other things) the real-world impact of a fine or forfeiture on the property owner. Huzzah! The decision follows on the heels of a U.S. Supreme Court decision earlier this year finding that the Eighth Amendment's prohibition on excessive fines does indeed apply to state and local governments. Click here for more.
- IRS Manual: We have a "database" of civil forfeiture information called the "Asset Forfeiture Tracking and Retrieval System." Institute for Justice FOIA request: We'd like that database, please. IRS: Actually, it's not a database, so FOIA doesn't apply, but here are some incomplete and heavily redacted printouts. Trial court: Good enough. D.C. Circuit: Decidedly not good enough. "Absent further evidence to the contrary, it seems safe to say that if AFTRAK is a database, the Institute is entitled to more than has been delivered, very possibly much more." (This is an IJ case.)
- Under Medicaid's free-choice-of-provider provision, "any individual" eligible for Medicaid has the right to obtain treatment from "any institution" willing and qualified to provide services, and state plans "must" comply with that directive. Can a patient who previously obtained birth control through Planned Parenthood sue in federal court to enforce this right after South Carolina terminates Planned Parenthood's Medicaid enrollment agreement? Fourth Circuit: Absolutely. Congress could have made an exception for providers of abortion services if it wanted to, but it didn't
- In the course of executing a search warrant on the office of a man the Fourth Circuit identifies only as "Lawyer A"—but whom the Baltimore Sun identifies as a prominent Baltimore defense attorney—IRS agents seize thousands of documents covered by attorney-client privilege and the work-product doctrine. But don't worry! We've established a "filter team" of prosecutors from the same district who will pick out all of the privileged stuff and make sure none of it goes to their colleagues on the prosecution team. Fourth Circuit: That doesn't sound remotely fair.
- Mother of a special needs student in Dallas public school files a Title IX complaint, alleging the school failed to protect her daughter from a fellow student who raped her in the class bathroom following a previous history of assault. District Court: Sorry, even though you sued under Title IX, you could have sued under a different law that requires you to exhaust your administrative remedies. Administrative hearing officer: Sorry, but now it's too late to exhaust your administrative remedies. District court: Well then, I guess you're just out of luck. Fifth Circuit: That is not how Title IX works. Case un-dismissed.
- If a union has a problem with an employer and goes on strike, federal labor law prohibits it from encouraging "secondary boycotts," that is, strikes by employees at other businesses in an effort to increase the original union's leverage with the employer. Which sounds an awful lot like a restriction on speech with a particular content. A First Amendment violation? Ninth Circuit: Modern First Amendment precedent might suggest so, but we'll stick with the precedent from 1951.
- Woman taxis home from a bar, incurring a $16.70 cab fare. Her credit card declined, cabbie calls the cops. Woman offers to go into her apartment to get cash, after which Newport Beach, Calif. cops barge in after her, handcuff her, and arrest her. Ninth Circuit: No qualified immunity for the arrest. The police lacked even arguable probable cause that the woman committed a crime.
- The federal government gives out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the attorney general withhold grants from cities—like Los Angeles—that refuse to share information with the feds about, or allow access to, arrested undocumented immigrants? Ninth Circuit (brushing off its dictionaries and canons of construction): Congress has never delegated the authority to the AG to place blanket conditions like this on the receipt of grants. (Third time is not a charm for the AG.)
- Allegation: Woman gets a restraining order against her abusive husband. With police escort, he returns to their Cheyenne, Wyo. home to pick up some of his things. Afraid, the woman steps behind the officer, brushing the officer as she moves. The officer yanks her arm, hits her, arrests her, gets her charged with a felony he knows to be bogus, and gives false testimony against her. (She's acquitted after spending several months in jail.) Excessive force? Illegal detention? Malicious prosecution? The Tenth Circuit says no. Qualified immunity.
- A criminal on the lam holes up in a Greenwood Village, Colo. family's home. What follows is a 19-hour standoff in which police fired tear gas grenades into the home, smashed down the door, set off explosives to open lines of sight, and ultimately smashed down the walls with an armored vehicle so that a SWAT team could apprehend the fugitive. Police take him alive, but the house is rendered completely uninhabitable. City: Sorry we destroyed your home; here's $5k for temporary living expenses. Tenth Circuit: And the city didn't even need to give you that much; this exercise of the police power is not a taking that requires just compensation.
- Fugitive flees a Pensacola, Fla. motel with police in hot pursuit. When he gets away, they search his motel room (on the off chance he came back). Then, after checkout time, they search his room again. The first search reveals a gun, the second, drugs. Eleventh Circuit: No suppressing the evidence. The fugitive can challenge the first search, but he loses because it was reasonable. And no way to challenge the search after checkout time. It wasn't his room anymore. [An interesting concurrence features the Circuits' first use of "rope-a-dope."]
- Did the Democratic National Committee tilt the 2016 primary in favor of Hillary Clinton over Bernie Sanders? Eleventh Circuit: We can't feel the Bern when the complaint's missing key facts. Dismissal affirmed.
- Police officer goes door to door, questioning Glen Burnie, Md. residents about a spate of burglaries. Residents at one home don't immediately answer, but their dog—a rigorously trained Chesapeake Bay Retriever named Vern—nudges out the screen door. The officer shoots Vern twice, killing him. Jury awards owner $1.3 mil in tort damages, which the trial court reduces to $207k. Maryland appeals court: Actually, make that $200K. (via @MDAppeal)
- Man pleads guilty to a bevy of charges brought by Clayton County, Ga. prosecutors arising from incident that began in Clayton County and ended in Fulton County. As part of the deal, more serious charges against him are abandoned. Can prosecutors in Fulton County subsequently re-indict him on the more serious charges? Georgia appeals court: No. (Via @ASFleischman)
- And in en banc news, the Seventh Circuit will not reconsider its decision barring Indiana from enforcing a law that bars abortions based on race, gender, or diagnosis of a disability.
Lynn Schofield, an African-style hair braider, once owned multiple salons, but she's been forced to shut down all but one. Even though demand for braiding services is through the roof and there is no shortage of capable braiders seeking work, Schofield can't hire enough braiders because the Louisiana State Board of Cosmetology imposes irrational licensing requirements—requirements that the Louisiana State Legislature never authorized—like 500 hours of unnecessary and irrelevant training. This week, a judge in Baton Rouge allowed Schofield's lawsuit challenging the requirements on economic liberty and separation-of-powers grounds to proceed. Click here to learn more.