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.
On January 22, the Supreme Court will consider whether states may exclude religious schools from generally available scholarship programs, or whether such exclusions violate the U.S. Constitution. Espinoza v. Montana Dept of Revenue is an IJ case. Click here for more from The New York Times.
- Pomona, N.Y. (pop. 3,200) residents and leaders with preference for "zero population growth" enact four zoning changes that will impede development of new college where students will train to be rabbinical judges and live with their families, bringing perhaps 4,500 Orthodox/Hasidic Jews into the village. Second Circuit (after 47 pages of facts): Two of the zoning changes were susceptible to an inference of religious animus and violate the First and Fourteenth Amendments, notwithstanding that residents would have vigorously opposed any project bringing that many new residents.
- Inmate at Lubbock, Tex. prison alleges he was forced to stay naked for several days in a cell in which every surface was covered with human excrement. He could neither eat nor drink for fear of contamination, and rather than fixing the problem, prison officials merely laughed at him. Fifth Circuit: Qualified immunity. The law clearly established that prisoners couldn't be kept in cells teeming with human waste for months on end, but it hadn't yet covered a stay of only six days. It's clearly established going forward, though.
- Prisoner en route to dental appointment overpowers Cameron County, Tex. officer, seizes handgun, and forces his way into a home. He shoots and kills an occupant, steals a car, and is killed after a high-speed chase. Can two other occupants of the home and the victim's estate sue the gov't? Fifth Circuit: Though at least six other circuits recognize the state-created danger theory of liability, we still don't. But even if we did, these plaintiffs would still be out of luck because they didn't allege the gov't knew that plaintiffs themselves were in danger (as opposed to people generally in the vicinity).
- En route to a mental health facility and high on methamphetamines, man jumps out of his fiancée's car at a traffic light while holding a three-inch knife, wanders to a residential neighborhood. Elizabethtown, Ky. police order him to drop the knife. Instead, he takes a step toward them with his knife raised "in a stabbing position" and tells the officers they'll need to kill him. They do. Excessive force? Sixth Circuit (over a dissent): No.
- The system Michigan officials have set up for prisoners to report rape "is a classic case of Orwellian doublethink," says the Sixth Circuit, and three inmates who allege they were sexually assaulted as juveniles while housed in adult facilities (a policy since abandoned) can proceed with their suit.
- Feds charge defendant with illegal reentry and, during the sentencing phase, make several comments about undocumented immigrants' taking American jobs. Sixth Circuit: The gov't's arguments were "blatantly inappropriate" and "unbecoming of the quality of lawyering expected from the United States Attorney's Office." But because the district court did not rely on those arguments, the defendant's sentence stands.
- During drug conspiracy trial, prosecutor asks witnesses to relay out-of-court statements of unnamed informants. Which violates the Sixth Amendment's Confrontation Clause, so the judge orders the prosecutor to stop. And yet the prosecutor does not—ultimately committing over a dozen violations on the first day of trial alone—so the judge grants a mistrial. Defendant: The prosecutor deliberately did it to cause a mistrial; the entire indictment must be dismissed. Sixth Circuit: There's no evidence of that; a new trial does not violate the Fifth Amendment's Double Jeopardy Clause.
- Farmington Hills, Mich. condo association bans, among other things, dogs, cats, and "immoral" activities. But smoking is allowed, which aggravates an asthmatic resident. Does the policy violate federal housing discrimination law? The Sixth Circuit says no.
- Those arrested for misdemeanor crimes in Giles County, Tenn. are detained after arrest until they pay bail—an amount set without reference to their ability to pay, without a determination of whether they pose a danger to the community or risk of flight, and without their presence. Several arrestees obtain a preliminary injunction against the county and sheriff for this system. Going forward, the injunction will allow bail if accompanied by evidence of the arrestee's ability to pay, necessity of detention, and alternatives to bail. Sixth Circuit: Indeed. And, contrary to the county and sheriff's arguments, the plaintiffs need not have sued the judges for their actions of setting bail. The county and sheriff play an active role in the challenged detention.
- After extensive remediation efforts, the site of a former Army munitions plant near Baraboo, Wisc., once the world's largest propellant manufacturing facility, is now suitable for recreational use. Seventh Circuit: No reason state officials can't allow two recreational uses opposed by plaintiffs: training dogs to hunt (on roughly 2% of the park) and off-road motorcycling (six days a year, among other restrictions).
- Allegation: As five Las Vegas police pin down unresisting concertgoer, a sixth officer chokes him unconscious. Ninth Circuit: Could be excessive force or analogous state law claims: assault, battery, and intentional infliction of emotional distress. To trial this must go. Judge Fletcher (concurring): And it's high time the Supreme Court clarified when exactly appellate courts have jurisdiction over disputed facts; current practice has resulted in "analytic chaos."
- In 1911, the feds grant a right-of-way to the owner of a reservoir outside Laramie, Wyo. Over the years, people buy the adjacent land and build homes and cabins. Yikes! Flooding damages many of the properties. Double yikes! The reservoir owner then decides to increase the amount of water in the reservoir. Landowners: It flooded because you exceeded the right-of-way. Owner: The right-of-way covers whatever the reservoir occupies, so we can add water as we please. Tenth Circuit: The landowners are right.
- And in en banc news, the Ninth Circuit will reconsider its decision reversing the conviction of a woman who slapped a fellow passenger on a flight to Los Angeles. The original panel had held the trial was improperly held in Los Angeles because the slap occurred somewhere over the Great Plains—and not in the Central District of California's airspace.