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.
- Posing as Russian mobsters seeking to purchase a business, federal agents hop on a plane to the Azores with "The Codfather," a fishing magnate, accompanied by a Bristol County, Mass. officer who helps the Codfather smuggle unreported cash. First Circuit: No need to reconsider the officer's conviction. (The officer gets eight months home confinement. The Codfather gets four years in prison.)
- Ghanaian man seeks asylum, claiming that his father and neighbors beat and threatened to kill him after learning of his same-sex relationship. Feds: But they didn't actually kill him, so the persecution wasn't "imminent or menacing" enough to qualify the man for asylum. Third Circuit: "We find it odd for the Government to make this argument here considering that [the man] was threatened with death by fire or decapitation while being assaulted, doused with fuel and exposed to a cutlass. All that was left for the mob to do was to cut off his head or set him on fire."
- In 2014, Baltimore police tracked down an attempted murder suspect with a cell-site simulator—a device that intercepts information from cell phones by mimicking the infrastructure that phones connect with. After winning a motion to suppress, the suspect turned around and sued the police, alleging a high-tech illegal search. The district court: The police had a warrant, so no dice. Fourth Circuit: But we still have to decide whether using a simulator was reasonable, and we have no idea how it works. How many other people's phones did it search? What data can it see? Remanded for fact-finding.
- Can a contract's choice-of-law provision choose what law decides if the contract was validly formed in the first place? Missing the chance to use "beg the question" correctly, the Fifth Circuit says no.
- Allegation: Motorist observes another driver driving erratically, unsafely. He flicks his high beams on and off, activates LED security lights on his windshield, follows the driver home, and asks if she is okay. Yikes! She is an off-duty Calcasieu Parish, La. sheriff's deputy. She says he flashed a fake badge, and he gets prosecuted for impersonating an officer. He spends 29 days in jail (and then another seven months on house arrest awaiting trial). A jury acquits after 27 minutes. Fifth Circuit: The deadline to file his malicious prosecution claim started running when he was acquitted, not when he was released from jail. The case should not have been dismissed.
- The feds offer grants to states to help them fight DUIs, including financing overtime pay for troopers writing citations to impaired drivers. Gadzooks! Two Mississippi highway safety officials learn of an internal investigation probing whether state troopers were writing ghost tickets to tap into that sweet overtime pay. The two officials tell the feds, the feds stop funding Mississippi, and the two are fired. First Amendment retaliation? Fifth Circuit: Nope. Their statements were made within their job duties and thus are not protected by the First Amendment.
- After the Civil War, Mississippi enacted a new state constitution that provided for a "uniform" system of public schools. But in 1987 the uniformity requirement was scrapped. Allegation: And that has resulted in schools in high-income white communities having nicer facilities and better resources than the schools serving plaintiffs' low-income African American communities (where school ceilings have wet spots, paint is chipping off the walls, among other things). Fifth Circuit: Sovereign immunity does not bar plaintiffs' request for a declaration that the 1987 amendment violates an 1870 federal law readmitting Mississippi into the Union. That claim may proceed.
- Just before a mother gives birth, Kentucky hospital staff test her urine, which comes back positive for opiates. Social workers visit, tell parents that all of their children (including the healthy new baby) will be removed unless they agree to a prevention plan prohibiting the mother from spending time alone with her children. They reluctantly agree. Subsequent testing reveals the test to be a false positive, but the social workers refuse to release the family from the prevention plan for two months. In the meantime, they interview the other children at school without warrants, asking them about "mommy using drugs." Sixth Circuit: Our precedent is unclear about the constitutionality of the interviews, so qualified immunity. But going forward, be on notice that that violates the Fourth Amendment. As for the prevention plan shenanigans—no qualified immunity.
- Saudi undergraduate student at a U.S. university emails his adviser to ask whether it's safe for him to enter the country on his current visa, and the adviser gives him the go-ahead despite the fact that a problem with the school's computer system means the visa has actually been suspended. A hilarious mix-up—which results in the student spending a month in ICE detention. Can the adviser be sued for his role in the debacle? This Sixth Circuit panel says yes.
- Nightmare fuel for any litigator, courtesy of the Sixth Circuit: "After eight years the parties now concede that the district court lacked diversity jurisdiction all along."
- Under the Fair Debt Collection Practices Act, car repossessions are unlawful if the repo company has "no present right to possession of the property." And in Indiana, a repo company has a present right to possession only if its actions "proceed without breach of the peace." Repo company arrives at woman's Indianapolis home, begins to take possession of her car. Woman protests. Repo men call cops. Officer arrives, slaps cuffs on the woman until after her car is towed. Seventh Circuit: Sure sounds like the woman might have breached the peace, in which case the repo men would have had no right to take the car, in which case taking the car would have violated the FDCPA. Her case can proceed.
- President of private college pleads guilty to accepting public funds for the college and kicking a portion of them back to the Arkansas state senator who procured them. (The president gets a 3-year sentence, and the senator gets an 18-year sentence.) But wait! On the eve of trial, the lead FBI agent on the case destroyed a hard drive that contained undisclosed surreptitious recordings from an informant. Dismiss the indictment? Eighth Circuit: No. It's mere speculation that anything helpful to the president's case was destroyed, and, besides, the court barred the feds from using the recordings and calling that agent as a witness.
- Congress has barred lower courts from issuing injunctions restraining the operation of immigration removal proceedings "other than with respect … to an individual alien." So was a district court right to issue a class-wide preliminary injunction requiring bond hearings for noncitizens who have showed a credible fear of persecution in their home country and are currently held separate from their families in substandard facilities without adequate access to medical care and supplies and with limited access to attorneys? Ninth Circuit: Yes. Individual alien just means it cannot be an organization, and the class is filled with individual aliens. Dissent: Such a reading renders "individual" superfluous.
- Allegation: Buckeye, Ariz. officer mistakes 14-year-old autistic boy who is repetitively flicking a piece of string in front of his face (a comforting behavior called "stimming") for a drug user. The boy shows the officer the string and tries to walk away; the officer takes him to ground, causing, among other things, a serious ankle injury. Ninth Circuit: No qualified immunity.
- In 1946, an Athens, Ga. grand jury hears 16 days of testimony from "countless" witnesses to the Moore's Ford lynching, in which a crowd dragged four African Americans from a car and murdered them. No charges were ever filed, and the testimony remains secret. Eleventh Circuit (2019): Release it. Eleventh Circuit (en banc): Reversed. It stays secret. (We discussed the original panel decision on the podcast.)
- Does clearly established law prohibit a police officer from pepper spraying a handcuffed detainee for three to five minutes? The Eleventh Circuit says yes.