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.
After seven years, a trip to the U.S. Supreme Court, two trips to the Indiana Supreme Court, and two trials, Tyson Timbs finally got his Land Rover back from the state of Indiana this week on the heels of a trial court decision last month that its forfeiture violated the Excessive Fines Clause of the U.S. Constitution. The case isn't over yet, though, as the state is once again appealing to the Indiana Supreme Court. Click here to read more.
- In 2016, Washington, D.C. officials crafted new regulations requiring child care providers to obtain college credentials in early childhood education. Day care providers and parents: Which will throw a lot of us out of work and raise the cost of child care (that is already the highest in the nation) while providing no actual benefits to children. D.C. Circuit: The fact that officials gave providers until 2023 to comply and has offered to consider waiving the regulations for some providers (but not others) is "cold comfort indeed." The case is not moot or unripe and should not have been dismissed. (This is an IJ case.)
- Despite COVID-19 order prohibiting in-person religious services, Holly Springs, Miss. church holds Easter services and a Bible study. Police cite the pastor, and the church sues. District court: "[T]his entire lawsuit is nothing more than a deeply misguided attempt on [the church's] part to gain permission to endanger their own lives and those of their fellow community members." The court won't rule on the motion for preliminary injunction on an expedited basis. Fifth Circuit: Temporary deferral of a decision may result in a permanent denial, so the city is enjoined pending the district court's decision. (While the appeal was pending, arsonists burned the church down. Judge Willett has sharp words in concurrence for the city's "shameful" suggestion that the arson moots the requested injunction.)
- In further pandemic–related news, the Sixth Circuit stays a district court order directing Ohio to (among other things) dispense with the ink-signature and witness requirements for ballot initiative petitions.
- Here's a fun game: See how far into this Sixth Circuit opinion you have to read before you can guess whether the Michigan officials responsible for the Flint Water Crisis are immune from suit.
- Allegation: After quadruple murder, Detroit police officers interrogate 14-year-old who lived nearby, feed him details of the crime. They falsely tell him his shoes tested positive for blood. The teen eventually confesses after the officers assure him he can go to school the next day. The real murderer confesses two weeks later, but no one follows up. The teen spends nine years in prison before being exonerated. Sixth Circuit: No qualified immunity for the detectives. (Click here for more from the National Registry of Exonerations.)
- Fraudster lies to bank while allegedly trying to inflate the value of the Chicago condos he's developing. After the FBI finds him in Saudi Arabia, he's thrown in debtor's prison there for not paying $26k in hotel charges and other debts. Will his time spent in Saudi detention offset his U.S. prison sentence for fraud? Seventh Circuit: No. No it will not.
- Allegation: Man drunkenly argues, fights with his uncle. The man gets a gun from his car, heads back to the uncle's porch. The uncle goes inside the house and locks the door, and the man turns away from the porch, the whole time pointing the gun (turns out it was a pellet gun) at either the ground or the sky. At that moment, and without announcing his presence, a Little Rock, Ark. officer shoots at the man five times, hitting him once in the head and killing him. Eighth Circuit: No qualified immunity.
- Mentally ill man in driver's seat of parked car rocks back and forth frantically while slashing the air with a knife. He doesn't respond to police, who break the passenger side window and tase him. He stumbles out of his door with the knife, and within seconds officers shoot 23 times, hitting him 15 times in the side and back, killing him. Eighth Circuit (over a dissent): Qualified immunity.
- Officers suspect Lancaster, Calif. man illegally possesses firearms in his home. (Neighbors say he fires into the air occasionally.) But rather than obtaining a search warrant, officers piggyback onto a separate investigation by code inspectors into violations at the home. (The man has put up tarps blocking view of the property from the street, put up floodlights that shine into neighbors' properties, and (maybe) electrified his fence.) Code inspectors get a warrant that allows police to assist and forcibly enter. They discover guns and drugs. Ninth Circuit: Suppress the evidence. The nine officers (instead of the usual one) were doing a criminal investigation under the guise of code enforcement. Dissent: The officers might have done a more thorough sweep than the warrant allowed for (going through drawers and taking 40 minutes), and that's what matters. Not their subjective intent upon entering the property.
- Can a California church get a preliminary injunction against the state's and county of San Diego's stay-at-home orders as applied to religious services? Ninth Circuit: "We're dealing here with a highly contagious and often fatal disease for which there presently is no known cure." So, no. Dissent: The order specifically singles out religious services for worse treatment than other types of mass gatherings, which is super unconstitutional. The church should get the injunction.
- In September 2017, the cities of Oakland and San Francisco sued fossil fuel producers, alleging that their production of greenhouse-gas-emitting fuels was a public nuisance under California law. The fossil fuel producers removed the case to federal court, which the district court granted on the grounds that the claim turned on federal common law. Ninth Circuit: No, it doesn't, but the fossil fuel producers identified six other bases for federal jurisdiction, so the district court should look at those before it decides whether remand to state court is appropriate.
- During a routine traffic stop, Clovis, N.M. police officer orders backseat passenger to produce his ID. Man demurs; officer arrests. Tenth Circuit: The man's false arrest claim may proceed. The police can demand identification only if they suspect the person of an underlying crime. And as for the officer's claim that the passenger's underlying crime here was refusing to produce his ID? Well, that's the sort of "circular reasoning" up with which we will not put.
- After chase, suspected car thief is wrestled to the ground by officers and fatally shot in the back by an officer. Harvey County, Kan. sheriff: Can't sue me for damages because I am a state official and protected by Eleventh Amendment immunity. Tenth Circuit: You're a county official. The suit can proceed.
- Motorist swerves all over snowy, icy highway, refuses to stop for police, flashes the peace sign. Eventually, they hit heavy traffic, and the motorist momentarily gets boxed in. A Clear Creek County, Colo. officer exits his car and shoots the motorist in the neck, rendering him a quadriplegic. Jury: Which was not excessive force. Tenth Circuit: And there is no cause to reconsider the jury's verdict.
- Police get call about "a skinny black man" who might be casing Madison, Ala. neighborhood, approach 115-lb, 57-year-old Indian man who repeats "no English" several times. An officer frisks him, takes him to the ground, kneels on him while his head lolls and nose bleeds. The (unarmed) man, who was out for a morning stroll in his new neighborhood, is permanently paralyzed. Eleventh Circuit: Could be excessive force. No qualified immunity. (The cop was fired and charged with assault—and then acquitted and rehired.)
For years, a judge in New Orleans ordered defendants to wear ankle monitors provided by a specific company to which the judge has personal, financial, and political ties. The company charged defendants hundreds of dollars a month in fees under threat of jailing, and the judge regularly refused to release defendants from ankle monitoring until they paid all their fees. And though the judge claims to have stopped the practice, the company is still trying to collect outstanding fees. This week, IJ filed a class action seeking cancelation and return of the fees as well as a ruling that protects the right to a neutral adjudicator. Click here for more.