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.
Six months after seizing the life savings of retired railroad engineer Terry Rolin, 79, the Drug EA announced this week it would return the money. Agents seized the $82,373 from Terry's daughter, Rebecca, at the Pittsburgh International Airport even though it is perfectly legal to fly with that much cash. Neither Terry nor Rebecca were charged with any crime. Their lawsuit will continue, however, because it includes class action claims seeking permanent nationwide injunctions against both TSA's and DEA's cash seizure practices at airports. Click here for more from The Washington Post.
- Congressional committee subpoenas Trump's former White House council Don McGahn to testify. DOJ: McGahn has absolute and total immunity from responding to subpoena. D.C. Circuit (over a dissent): This is really political stuff that courts shouldn't get involved with. The committee doesn't have standing. Also, we're going to be pretty unclear if this would apply in other contexts.
- In 2007, imprisoned Chinese dissidents sued Yahoo for turning over their email account information to the Chinese government, which used the information to prosecute them. To settle the case, Yahoo agreed to create a $17.3 mil fund to provide humanitarian assistance to dissidents and resolve claims by dissidents similarly harmed by Yahoo's collaboration with the Chinese government. Allegation: But Yahoo depleted the trust, violating its fiduciary duties. Yahoo: Trust? What trust? D.C. Circuit: The law of trusts is complex, but the allegations here are enough for the case to go forward.
- New York City man is arrested at Black Lives Matter march for obstructing traffic and standing in the road. He sues. Allegations: I neither obstructed traffic nor stood in the road; the arresting officer's account was false. And accepting those allegations as true, says the Second Circuit, his case against the officer and the city can proceed.
- Blogger seeks access to portions of video deposition played to jury, in which a former teacher at a New Haven, Conn. religious school testifies that the principal sexually abused a student; the teacher did not report it; and the teacher was himself the victim of the principal's abuse years prior during his time as a student. Second Circuit: A transcript is publicly available, and there is no need to release the video—especially since the blogger seems motivated by spite. (In separate opinions, the Second Circuit affirms the $21.7 mil awarded to the victim and an installment plan ordered to aid efforts to collect the debt. The principal is appealing his conviction.)
- The feds give 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 so-called sanctuary cities and states that refuse to share information with the feds about, or allow access to, arrested undocumented immigrants? Seventh Circuit (2018), Third Circuit (2019), Ninth Circuit (2019): No. Congress never gave the AG the authority to impose blanket conditions on the program. Second Circuit (2020): Congress gave the AG permission to impose conditions by requiring all grant applicants to comply with all applicable federal laws. Which laws are applicable? That's for the AG to decide.
- UberBLACK drivers control their hours and can work for Uber's competitors or for themselves. District court: So they're independent contractors and not employees, and federal minimum wage and overtime requirements don't apply to them. Third Circuit: Not so fast—a fact-finder needs to take a look. Uber forces drivers to close the app if they want to work for a competitor or themselves, fires drivers who fall below a 4.7 out of 5-star passenger rating, and limits the number of consecutive hours drivers can drive, all of which and more might indicate that Uber exerts enough control over the drivers to make them employees.
- Police officers knock on door of Richmond, Va. home and smell marijuana smoke when the occupant appears. Moments later, they find a still-smoldering joint atop a trash can. They then get a warrant to search every nook and cranny of the home for drug-related items, yielding more marijuana, along with cocaine and a handgun. Yikes! Occupant: But you already found the source of the marijuana smoke, so the warrant was overkill. Fourth Circuit: The warrant was just fine. Conviction affirmed.
- When Congress created the Consumer Finance Protection Bureau, it decided that the agency would be led by a single director who could be removed only by the president for cause. A violation of the separation of powers? The Supreme Court heard oral argument on that question on Tuesday. Fifth Circuit (also Tuesday): Well anyway, here's our opinion on the question: The CFPB's structure is constitutional. Dissent: Less than a year ago, sitting en banc, we ruled that the structure of the Federal Housing Finance Agency, which has the exact same structure as the CFPB, was unconstitutional. That precedent controls.
- TSA discovers $39k in an Ohio man's carry-on luggage. Yoink! We'll be keeping that. Property owner: That's my money, give it back. Gov't: Not unless you answer our questions about how you got the money. Property owner: I'm not doing that; I'm pleading the Fifth. Sixth Circuit: And so there's no evidence that it's your money. The gov't gets to keep it.
- Allegation: Shortly after a black inmate at a Michigan prison objects to a white guard referring to him as "Bubba" and "boy," the guard "discovers" heroin in the inmate's pocket. Although his drug tests come back negative, the inmate is tried—and acquitted—of drug possession. The inmate sues for malicious prosecution. Sixth Circuit: And the district court should not have dismissed that claim. There's enough evidence that the guard lied for this to go to a jury.
- Parents of a transgender child suffering from suicidal thoughts, anxiety, and depression take their child to the hospital, which puts the child under psychiatric evaluation. A week later, the insurance company decides the child is fine and terminates additional coverage. Parents: Great, time to take you home. Hospital: Not without approval from Hamilton County, Ohio child welfare officials. Officials: Not without approval from the hospital. Litigation ensues. Sixth Circuit: The parents have plausibly alleged a due process violation against both officials and the hospital, which may have been a state actor here.
- Troubled 14-year-old in Williamson County, Tenn. is arrested after allegedly crashing his mother's car. After he (maybe) threatens other juveniles in the detention center, jailors put him in solitary confinement for a month. A constitutional violation? Sixth Circuit: You can't do that to a mentally ill child today. But the law was not clear when this happened in 2013. Qualified immunity.
- Ohio lets unexpectedly hospitalized voters request absentee ballots last minute. Unexpectedly jailed voters? Not so much. Which violates neither the Equal Protection Clause nor the First Amendment, the Sixth Circuit holds.
- When a ref makes a bad call, what is the right response? Yelling at the TV? Taking to Twitter? Or the overreaction of certain Kentucky Wildcats fans to a 2017 loss to the Tar Heels—a harassment campaign involving hundreds of threats to the referee's family and false reviews of his side business? The ref: A Kentucky sports radio station should pay for fanning the flames. Sixth Circuit: Not so. The broadcasts were ignoble, but the First Amendment protects them all the same.
- Motorist pulled over by Ohio trooper appears nervous; the trooper asks, among other things, to pat him down. The motorist nods slightly, but video is ambiguous as to what he's nodding to. The pat-down yields a gun (which he is not allowed to have on account of a previous felony). Sixth Circuit (over a dissent): Suppress the gun. Nervousness during a traffic stop does not create reasonable suspicion necessary to conduct a pat-down. And the driver's consistent confusion is not an unequivocal indication of consent.
- Giles County, Tenn. officials contract with two private probation companies to supervise misdemeanor probation. Probationers: The companies extort money from those too poor to pay probation fees. Companies: Toss the case—we can't be sued. Sixth Circuit: Oh yes you can. Qualified and sovereign immunity don't help you here. (The county's bail system was preliminarily enjoined back in December.)
- Motorist leads police on high-speed chase, is stopped, follows commands to stick his hands out of the window but declines to turn off the engine or exit the vehicle. It is still in drive, and he doesn't want to get shot if it lurches forward. Nor does he want to get shot for putting a hand back inside. A Southfield, Mich. officer unleashes a dog, which bites the motorist as he is dragged out of the vehicle. Excessive force? The Sixth Circuit says no.
- Douglas County, Neb. officer catches boyfriend and girlfriend with marijuana, separates them, asks the girlfriend—for nearly an hour—what she is willing to do to keep her boyfriend out of jail. (She does some things. The officer goes to jail.) Can the girlfriend sue the sheriff, who didn't have a sex abuse policy or do any training for his deputies? The Eighth Circuit says no. Previous instances of deputy misconduct included "trading cigarettes for a detainee's display of her breasts; licking a minor stepdaughter's nipples during horseplay; asking 'deeply personal and inappropriate questions' to members of the public; engaging in verbal sexual harassment; having consensual sexual contact at the office; and abusing work hours to conduct personal business or ask women out on a date. While this behavior is troubling, it is not enough to put a supervising official on notice that a deputy might use his position and authority to separate a woman from her boyfriend at the park and coerce her to engage in sexual contact with him."
- TV station erroneously reports that Fergus Falls, Minn. car dealership is facing criminal charges for overcharging law enforcement when (oops!) it's just the car dealership's former manager. Is the dealership a "public figure" for purposes of Minnesota defamation law? Eighth Circuit: We're skeptical that the Minnesota Supreme Court really thinks that all corporations are automatically public figures, but we've said in the past that it thinks that, so that's what we're stuck with.
- Allegation: St. Louis routinely demands bail for pretrial detainees without determining whether each is able to pay, a flight risk, or a danger to the public. Instead, a bond commissioner recommends a certain cash bond be set, the judge on duty usually accepts that recommendation, and those who can pay get out, while those who cannot stay behind bars. Five weeks later, those who are held get a bail review hearing, but still judges routinely fail to tailor bond to arrestees' individual circumstances. St. Louis: New rule: Courts may not impose cash bail without an individualized assessment of an arrestee's financial circumstances, and a hearing must happen within seven days of the arrest. Eighth Circuit: Enjoining the old system without considering the new rule was inappropriate.
- In 2017, former Maricopa County, Ariz. Sheriff Joe Arpaio was found guilty of criminal contempt for willfully violating a court order that prohibited him from enforcing federal immigration laws. After conviction, but before sentencing, the president gave him an unconditional pardon, and the trial court dismissed the case. Sheriff Joe: And the court should have vacated my conviction, too! Ninth Circuit: No need to do that. The final judgment was dismissal; the conviction itself doesn't cause any harm.
- Federal immigration law says that migrants who arrive in the United States may apply for asylum "whether or not [they arrive] at a designated port of arrival." In November 2018, President Trump issued a proclamation stripping asylum eligibility from every migrant who crosses into the United States between designated ports of entry. Sensing some tension between these positions, a district court enjoined the new policy. Ninth Circuit: As well it should have. Apart from being an arbitrary and capricious interpretation of federal immigration law, it conflicts with treaty obligations that have existed for more than 50 years.
- Federal immigration law says that the government is prohibited from removing an alien to a country if the alien convinces the attorney general that his or her life or freedom would be threatened. The Trump administration's "Migrant Protection Protocols" prohibit asylum screening officers from asking asylum seekers whether they fear that their life or freedom would be threatened upon being returned to Mexico. Instead, "[t]he MPP requires asylum seekers—untutored in asylum law—to volunteer that they fear being returned to Mexico, even though they are not told that the existence of such fear could protect them from being returned." Ninth Circuit: Which is a really, really clear violation of the law. The MPP is enjoined throughout the Ninth Circuit.
- Last year, DHS and DOJ issued the "Third Country Transit Rule," under which noncitizens who try to enter the U.S. at the southern border after that date are ineligible for asylum unless they also applied for asylum in some other country, such as Mexico, that they passed through on their way here and … y'know what, you can probably guess where the Ninth Circuit is going with this one.
- In 1889, railroad company builds railroad through Swinomish Indian reservation (a 15 sq.-mile reservation on the Puget Sound in Washington) without permission. After much litigation, the company finally obtains an easement in 1991 allowing it to run a max of one train of 25 cars in each direction per day. Yikes! Among other violations of the agreement, the railroad runs trains with more than 25 cars (including 100-car trains), sometimes more than once per day. Railroad: Federal law preempts the easement agreement. Ninth Circuit: It does not. And we regret that the railroad's attorneys' misrepresented case law in their brief.
- For over a decade, one of the Big Three credit reporting agencies incorrectly placed terrorist alerts on the front pages of consumer credit reports and then sent those consumers confusing and incomplete information about how to remove said alerts. They knew this was illegal. Jury: $60 mil in damages. Ninth Circuit: The agency's conduct was reprehensible—but not so egregious as to justify such a high punitive damages award. $32 mil instead.
- Fresno County, Calif. school system pays female math consultant less than male counterparts. Ninth Circuit (2018, en banc): Overruling precedent, we now say the fact that the male counterparts made more at their previous jobs is not a defense against her Equal Pay Act claims. SCOTUS (2019): Vacated. Judge Reinhardt died before the opinion was released, so his vote shouldn't have counted. Indeed, "federal judges are appointed for life, not for eternity." Ninth Circuit (2020, same en bancpanel but now with Bea instead of Reinhardt): What we said last time.
- Allegation: Colorado inmate who adheres to Buddhism, vegan diet develops a severe case of gout after being fed exclusively pinto beans and steamed rice for lunch and dinner for months. He's transferred to a new prison where the "vegan patty" (served 19 of every 28 days) stinks, causes stomachaches, diarrhea, vomiting. Tenth Circuit: His claims about the vegan patty should not have been dismissed.
- Current and former alien detainees at a privately owned immigration detention center file a class action, alleging that the private contractor's "voluntary work program" is actually slave labor. Contractor: The federal prohibition on slave labor doesn't cover private contractors or alien detainees. Eleventh Circuit: Actually, it covers both.
- A 27-year-old Army sergeant is convicted of grisly 1985 Fayetteville, N.C. rape and triple murder, sentenced to death. The state supreme court overturns the conviction due to the prosecutors' extensive use of graphic photos; he's acquitted at a new trial. He reenlists in the Army and serves for many years before retiring. In 2006, a cold case review tests previously untested sperm samples from one of the victims. It's a match. But the state is stymied by double jeopardy—what to do? In steps the military, which recalls him to active duty, court-martials him for murder. The Fourth Circuit (2012) refuses to put a stop to the proceedings. He's convicted and sentenced to death. Court of Appeals for the Armed Forces (2020): Conviction affirmed. (Via CAAFlog. Get your longform journalism here.)
- Wyoming police seize $470k cash during a traffic stop but wait nine months to initiate any formal forfeiture proceedings. Which violates the Due Process Clause, says the Wyoming Supreme Court. The state must return the currency. (Click here for some commentary on the decision.)
- Allegation: After woman declines Kansas City, Kan. officer's sexual advances, the officer frames the woman's 17-year-old son for murder—part of a decades long pattern of misconduct that was well known to the officers' superiors, in which he coerced sex from vulnerable women, used them as informants, and framed innocent people for crimes committed by drug dealers. Can the then-teen (who spent 23 years in prison before being exonerated) sue the officer, a bevy of other officers who participated or failed to intervene, and the municipality? D.Kan.: Yes. Yes, he can. (h/t: @pebonilla)
- After the director of a cabinet-level agency resigns, federal law requires the position of acting director to go to the resigned director's first assistant (until a new director can be confirmed by the Senate). So in 2019, when the director of U.S. Citizenship and Immigration Services resigned, his first assistant, Mark Koumans, became acting director—for nine days. On the 10th day, officials created a new position said to be above the old first assistant, allowing Ken Cuccinelli to leapfrog Koumans into the acting director role. Cuccinelli then issued directives making it more difficult to seek asylum, which five Honduran asylum seekers challenge. D.D.C.: Cuccinelli is not legally in charge of USCIS, and the new rules must be set aside.
- St. Paul and Minneapolis both require landlords to provide voter registration info to tenants. Unconstitutional compelled speech? D.Minn: Indeed so. The cities provided no evidence that the ordinances boosted voter participation or that alternative, voluntary methods were insufficient, and we are not going to take their word for it.
In 2014, after his wife received a red-light camera ticket, Mats Järlström began to research yellow-light timing and determined that the equation traffic engineers have used worldwide since 1965 is incomplete, leading to too-short yellow lights. Mats presented his findings to the media, to traffic engineers and physicists, and to government officials, which drew the ire of Oregon regulators, who fined him for practicing engineering without a license. In 2018, a federal court ruled that that violated the First Amendment. And last week, the Institute of Transportation Engineers announced that Mats was right all along and voted to adopt his updates to the 1965 equation, which will improve safety at traffic lights worldwide. Click here for the technical details. And click here for more about the case.