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.
- Does the president have absolute immunity from being investigated for crimes not committed while in office? The Second Circuit says no; President Trump cannot block a subpoena requiring an accounting firm to turn over his tax returns as part of a New York grand jury investigation into potential hush money payments to former paramours.
- Seeking to raise revenue while curtailing smoking, New York imposes hefty taxes on cigarettes, leading to a thriving black market. So how much is UPS on the hook for after it transported untaxed cigarettes from Native American reservations to customers in New York, in violation of an earlier settlement agreement? District Court: $246 million. Second Circuit: Too high by about $150 million.
- Pennsylvania school officials investigate a licensed teacher, close the case without imposing any discipline—but sternly warn the teacher that both the investigation and its outcome are a secret and that he would commit a misdemeanor by telling anybody about them. Can he get a preliminary injunction under the First Amendment? The Third Circuit says maybe, remanding the case back to the district court for a closer look.
- Man sells $100 of pot to informant; police raid his Myrtle Beach, S.C. home, shoot at him 29 times, leaving him paralyzed. Police say—falsely—that they knocked and announced before battering down his door (as their warrant required them to do) and that he shot first. Fourth Circuit: A jury will decide if officers used excessive force. This isn't one of those "bad guesses in gray areas" types of situations where qualified immunity is appropriate. (More from Radley Balko.)
- For years, a group of Baltimore police officers rob and extort the city's residents, pocketing cash, drugs (which they then resold), and jewelry. While most of the officers plead guilty to racketeering, two go to trial and are convicted and sentenced to 18 years. (Sentences for all the officers range from seven to 25 years.) Fourth Circuit: The convictions and sentences are "just and necessary." (Click here for some high quality investigative journalism.)
- Head varsity cheerleader at San Benito, Tex. high school is dismissed from the team after the school discovers she used profanity and sexual innuendo on social media, a violation of the school's "Cheerleading Constitution." Fifth Circuit: Dismissing her from an extracurricular activity for off-campus speech does not violate the U.S. Constitution. (Come for the First Amendment analysis, stay for judicial explanation of, among other things, what "lmao" stands for.)
- Garland, Tex. vocational school is forced to shut down after the feds seize all its operating funds and initiate civil forfeiture action (without charging anyone with a crime). The school files counterclaims alleging the seizure violates the Fourth and Fifth Amendments. District court: The forfeiture is proceeding against the property not the school, and property cannot file counterclaims. Fifth Circuit (August 2019): No need to rule on that; the feds are immune from suits seeking damages. Fifth Circuit (this week): Contrary to the district court (and the First and Sixth Circuits), one can indeed file counterclaims in forfeiture proceedings. But the feds are still from immune suits for damages. (Other remedies may be fair game.)
- Charter School Pro-Tip: If you have appeared on TV show America's Supernanny expressing support for corporal punishment, you may have your application to build a charter school in Louisiana denied, and the Fifth Circuit will hold that the school superintendent who recommended the denial has qualified immunity.
- "Have you ever waited hours in line at the DMV, only to be told once you got to the front that you didn't have the right paperwork?" So writes Judge Thapar of the Sixth Circuit, finding that a federal inmate in Ohio did indeed have the right paperwork to sue over a surgery that allegedly left him permanently disabled. (That is, a state rule that requires an affidavit from a medical professional at the outset of a medical negligence suit doesn't apply to federal cases.)
- Concerned that their daughter is an unfit parent and seeking to persuade her not to move an hour away from them, couple threaten to publish nude photos of her. This does not work. So they conspire with Lawrence County, Ill. law enforcement to have daughter arrested on manufactured charges and take custody of their granddaughter, a toddler, while the daughter is in jail. Seventh Circuit: No need to disturb jury award of $970k that the couple must pay the daughter. (Law enforcement settled with her for $75k.)
- In 2018, the Supreme Court reversed decades-old precedent permitting labor unions to deduct fees from non-union members' paychecks. Can non-members who paid the fees under protest recoup the fees? The Seventh Circuit says no; the union relied in good faith on precedent when it collected the fees.
- Arkansas bans begging in a harassing manner. Does that give the state too much leeway to harass non-harassing panhandlers? District Court: The law almost certainly violates the First Amendment; no enforcing it while the case proceeds. Arkansas: The preliminary injunction should only apply to the two plaintiffs. Eighth Circuit: Nope. It would be ridiculous to allow enforcement of an unconstitutional law. Dissent: The law is probably unconstitutional, but everyone else who wants protection should still have to come to court to get it.
- After an altercation with two off-duty cops (moonlighting as security) in the lobby of a Minneapolis nightclub, NFL player is again accosted by the cops outside. The lawmen break his phone—which he's using to film the encounter—tase him twice and arrest him for trespass and disorderly conduct. He's acquitted after a week-long trial, and promptly sues. Eighth Circuit: The officers get qualified immunity for the footballer's false arrest claim, but not for the claim that they unreasonably tased him. Partial dissent: The false arrest claim should proceed too.
- Missouri's lobbyist registration laws cannot constitutionally apply to someone who talks about political issues with lawmakers but who neither spends money nor receives money as part of that endeavor. So says a majority of the Eighth Circuit, sitting en banc.
- FBI agent uses computer magic to determine that someone in Apartment 243 was using Apartment 242's wireless router to distribute child pornography. And that wizardry raises no Fourth Amendment concerns, says the Ninth Circuit. "[S]ociety is not prepared to recognize as reasonable an expectation of privacy predicated on unauthorized use of a third-party's internet access."
- State horseracing officials strip $1 mil prize from winner of 2008 Ruidoso Downs, N.M. race after positive test for caffeine. But the prize is reinstated after a disciplinary panel concludes that the amount was negligible and likely attributable to "caffeine contamination of the equine environment." Did the owners of the second-place horse have a procedural due process right to participate in the panel's proceedings? The Tenth Circuit says no.
- High school football players in Charleston, S.C. have an "innocent ritual" in which they make monkey noises while smashing a watermelon that they have named after a formerly segregated African-American school in the community. Upon learning of this ritual, a local paper describes the players as "racist douchebags." Actionable defamation? S.C. Court of Appeals: Nope, protected opinion. (Ed.: Alternatively, truth is an absolute defense to defamation.) (via @adamsteinbaugh.)
- Man sentenced to life without parole dies, is resuscitated (allegedly in violation of his do-not-resuscitate order). Man: So now I should be released immediately. I completed my sentence. Iowa appeals court: No.
- An in en banc news, the Fifth Circuit will reconsider its decision holding that the Indian Child Welfare Act, which prioritizes Indian families over non-Indian families in adoption proceedings for Indian children, does not violate equal protection.
Friends, Colorado law allows private developers to form "special districts" where they can exercise eminent domain to seize private property from unwilling sellers without oversight from any bona fide elected official. And earlier this year, the Colorado Supreme Court upheld such a taking outside the town of Parker so the parcel in question can be used as a public road through the developer's development. This week, IJ asked the U.S. Supreme Court to weigh in and resolve the growing split among state supreme courts on the question of whether any incidental public benefit from a private development project qualifies as a "public use." Click here to read more.