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 Bound By Oath podcast: Substantive due process, the constitutional requirement that when the government wants to deprive someone of life, liberty, or property, it has to have a good reason. Featuring Professors Erwin Chemerinsky, Randy Barnett, and Victoria Nourse. Click here for Apple Podcasts.
- New York man is sentenced to three years in prison on a state marijuana charge, to run concurrently with a yet-to-be-determined federal sentence on gun charges (which ends up being 10 years). Thanks to the vagaries of New York sentencing law, this confuses the hell out of everyone, and the prisoner ends up being detained in state prison for four additional months after serving his federal sentence, before things are finally straightened out. A due process violation? Second Circuit: Yes. When prison officials suspect an error like this, they need to inform the prisoner, the sentencing judge, and the lawyers. But that wasn't clearly established, so qualified immunity.
- Pennsylvania inmate eats Peanut M&M offered to him in visiting room (purchased from a vending machine in the visiting room). Guards suspect he swallowed a baggie of drugs. He is taken to a special cell, and his excretions are monitored for four days. An X-ray is taken. No drugs. Nevertheless, officials keep him there for five more days. For all nine days, the room is constantly illuminated, and there is no water, TP, or soap. The inmate is generally handcuffed to a bed, so he can't stand. Third Circuit: He can sue over the length of the confinement. Dissent: Too right. But he should also be able to sue over being forced to lie in his own filth.
- Woman calls 911 when her ex-husband (who had repeatedly attacked and threatened to kill her) breaks into her Dallas home. For 17 minutes, she screams for help on the phone. But police take nearly an hour to arrive, after making a pitstop at a convenience store. When they do show up, they knock, but there's no answer, so they leave. Her family finds her body two days later. Fifth Circuit: No constitutional violations here.
- Texas refuses to let man have a Buddhist spiritual adviser in the execution chamber (he could have a Christian or Muslim adviser with him). Supreme Court: Can't do that. Texas: Fine. No more spiritual advisers of any religion in the chamber. Inmates may meet with independent spiritual advisers until 4:00 p.m., talk with them by phone until 5:00 p.m., and meet with Texas-employed spiritual advisers until they enter the chamber at 6:00 p.m. Inmate: But Texas employs only Christian and Muslim spiritual advisers, so I'm still treated differently. Fifth Circuit: Can't do that. Dissent: We're only talking about an hour here.
- Texans who move to a new home can update their driver's licenses by either submitting a paper application or applying online. Those who apply on paper can have their voter registration automatically updated. Those who apply online, however, have to mail in their updated voter registration. Can three people, who applied online but discovered when it came time to vote that they were not registered, sue? Fifth Circuit: They've since registered and haven't suggested they'll move again, so they lack standing. Concurrence: Being deprived of the right to vote is a big deal.
- Man buys heroin, overdoses, dies. A Kalamazoo, Mich. dealer is convicted of multiple counts, including selling heroin resulting in death, which brings with it a mandatory life-without-parole sentence. Dealer: I got set up! Sixth Circuit: The "sentence is severe, and perhaps even misguided as a matter of criminal-justice policy." But sentence affirmed.
- Ohio state trooper, who is black, repeatedly sexually harasses women while on duty, gets fired. He sues, alleging racial discrimination, citing the behavior of a white trooper who was not dismissed. Sixth Circuit (over a dissent): "Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there."
- Tennessee parents of a child with autism remove him from public school and place him in a private therapy program, where he starts to improve. They are convicted of truancy. They enroll their child in a state-approved private school, but they are worried it won't be a good fit and want the option to remove him from the school in the future. So they file a lawsuit and seek a preliminary injunction, which the district court denies. Sixth Circuit: And it was correct to do so. Even if the parents are right on the law, they haven't shown imminent injury.
- There's bad lawyering, and then there's lawyering so bad that it triggers two different types of sanctions. So it is in this Seventh Circuit employment discrimination appeal, in which the arguments in appellant's "monstrosity of an appellate brief" are deemed so "frivolous" and "incoherent" as to trigger a show-cause order under both Federal Rules of Appellate Procedure 28 and 38.
- Grant, Okla. school superintendent conspires with his secretary to commit bank fraud and embezzlement. Yikes! The secretary commits suicide, leaving note that claims sole responsibility for the crimes. Double yikes! At superintendent's trial, district court excludes the exculpatory letter. Triple yikes? No, affirms the Tenth Circuit. The trial court reasonably concluded that the note was inadmissible hearsay.
- Octogenarian with Alzheimer's and dementia is out for a walk near his home when police approach him and begin asking him questions. Confused by the encounter, he attempts to walk away, at which point police tackle him, handcuff him, and arrest him. He's held in custody for 11 hours until he signs a form that he can't understand and that Larimer County, Colo. jail officials will not permit his wife to effectively explain to him. Did the jail officials violate the Americans with Disabilities Act? Tenth Circuit (unsigned, nonprecedential opinion): No reasonable jury could so conclude. Dissent (signed and published): "If law enforcement officers propose to arrest Alzheimer's patients for the simple act of walking around the block, then jail personnel had best be prepared to accommodate the disabilities of those patients when clearly advised of the patients' condition." (The man's claims against the police are settled for $113k.)
- Salt Lake City, Utah man suspected of terrorist activity is subject to advanced screenings at the airport: no checking in online (a federal officer must OK his boarding pass), prolonged questioning and searches at the checkpoint, and then another search at the gate. Which does not substantially interfere with the man's right to travel, says the Tenth Circuit, so his due process claims were rightly dismissed.
- In 2015, two private Christian high schools who are to face off against one another on the gridiron ask Florida state athletics officials if they can conduct a joint prayer over the loudspeaker before kickoff. Officials decline, citing the principle of the separation of church and state. A First Amendment violation? Could be, says the Eleventh Circuit; the free speech and free exercise claims can proceed to discovery.
- Georgia game warden accosts man resting in a truck, follows him, handcuffs him, and then releases him. Man sues. Game warden: I had probable cause to stop him because he had a sleeping bag in the bed of his truck, which looked like the type of bags used by "illegal palmetto berry harvesters." District court: The "observance of an unfurled, flattened sleeping bag in the bed of a parked truck in a public park in the middle of the day is not a particularized and objective basis establishing reasonable suspicion of criminal activity—no matter what berry-picking season it is." Eleventh Circuit: Just so.
- And in en banc news, the D.C. Circuit will not reconsider its decision refusing to block congressional subpoenas of President Trump's business records. Dissent: "If the competing opinions here demonstrate anything, it is that this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary."
Washington state has a work-study financial aid program that pays a portion of low- and middle-income college students' wages when they obtain work—often related to their course of study. Participating employers include businesses large and small, nonprofits, and municipalities. But students working for religious employers were barred from the program—until this week. In response to an IJ lawsuit, state officials adopted new regulations removing the prohibition. Click here for more.