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.
- To be included in debates hosted by the Commission on Presidential Debates, a candidate must poll at 15% nationally, a threshold that no third party has satisfied in nearly two decades. A violation of federal election law? D.C. Circuit: The law requires only that the standards for inclusion be objective, and a 15% threshold is surely that, even if it is difficult for third parties to satisfy.
- Allegation: Major chocolate companies Nestlé, Mars, and Hershey fail to disclose on the packaging of their chocolates that their cocoa supply chains rely on child slavery. That violates the Massachusetts Consumer Protection Act. First Circuit: No, it doesn't, but you should definitely feel guilty about buying chocolate, the production of which really does rely on child slavery.
- Suspecting a Massachusetts woman of illegal firearms sales, the ATF—without a warrant—installs a camera on a utility pole outside her home, allowing it to monitor the home 24-7 from May 2017 to January 2018. Based in part on evidence gathered by this camera, the woman, her husband, and her mother are charged with drug trafficking. First Circuit: And under circuit precedent, the continuous monitoring of someone's house in this fashion is perfectly fine. Concurrence: We should really revisit that precedent. "For most of our nation's history, the most vigilant voyeur could not replicate this kind of surveillance of the concededly observable but often intimate daily activities of life that occur so close to home."
- Kemah, Tex. police respond to reports that man is threatening to jump to his death from a bridge. They remove him, arrest him for public intoxication. Though he is agitated and yelling that he should have jumped, no one takes the blanket he'd been given at booking. He uses it to hang himself. Fifth Circuit: If the facts are as plaintiffs allege, the cops violated the Fourteenth Amendment by failing to remove the blanket when they knew the man was at significant risk of suicide. No qualified immunity.
- Euclid, Ohio police use-of-force training materials include a few humorous asides, such as a cartoon of an officer striking a civilian with the caption "protecting and serving the poop out of you" and a link to a comedy sketch titled "How not to get your ass kicked by the police!" Might these demonstrate indifference to the use of force? Sixth Circuit: Indeed, they might. So a motorist who was tased and pepper sprayed despite his attempts to comply with Euclid officers' commands can take his claims against not only the officers but also the municipality to a jury.
- Hanging a tree-shaped air freshener from your rearview mirror gives the Chicago Police Department license to pull you over, the Seventh Circuit affirms. And woe betide if you have a felony conviction and happen to be driving with a rifle and two handguns.
- Arizona man books flight on Southwest Airlines from Phoenix to Chicago. Uh oh! Southwest ran out of de-icing fluid in Chicago, leading to the cancelation of hundreds of flights out of and into Midway Airport. As a result, Arizona man books a flight to Omaha, rents overnight lodging, and proceeds to Chicago the next day. Can he recover damages for breach of contract? Seventh Circuit: No, because there was no breach; Southwest is allowed to cancel flights as long as it provides rescheduled flights. Concurrence: Technically, there was a breach, but the airline provided the remedies required by the contract, so it's the same result.
- Investigating allegation that teenage boy molested four of his younger sisters, Arkansas police question the girls, promise them that their answers will remain confidential (as required by state law). Nearly nine years later, police release to the tabloids a redacted report with full descriptions of the interviews. Allegation: The girls are "obviously identifiable" and experienced public backlash, mental anguish. Eighth Circuit (panel): Might be a violation of the girls' informational privacy rights under the Fourteenth Amendment. No qualified immunity. Eighth Circuit (en banc): The right isn't clearly established (and may not exist at all). Qualified immunity.
- In 2019, Arkansas erected an unusually high barrier for new political parties to get on the ballot. Simplifying slightly, they need to garner around 27,000 votes, all during a rolling 90-day window, and submit their petition at least 425 days before the general election. Eighth Circuit: The Libertarian Party of Arkansas is likely to succeed in its challenge, and the district court did not err in entering a preliminary injunction lowering the signature threshold to 10,000, the number required under prior law. (After his recent contretemps with the Eleventh Circuit, the ghost of Anthony J. Celebrezze Jr. was reportedly pleased to see his surname spelled correctly in the Eighth.)
- "America's most spectacular fossil," two dinosaurs who died fighting each other and remain intertwined 66 million years later, is discovered on Montana ranch. Does it belong to the ranchers or to investors who own the mineral rights? Ninth Circuit (2018): The investors. Fossils are mineral under state law. Ninth Circuit (2020, en banc): The Montana Supreme Court says otherwise; the fossils instead belong to the ranchers.
- IRS notifies two medical marijuana dispensaries that they cannot take deductions because they traffic in controlled substances, and thus they severely underpaid their taxes. They wish to challenge this. Their attorney sends appeal documents the day before they're due via "FedEx First Overnight," but they arrive a day late due to FedEx error. Close enough? Ninth Circuit: Though the IRS allows for the later delivery of documents delivered by "FedEx Standard Overnight" and "FedEx Priority Overnight," they hadn't yet approved "FedEx First Overnight." (It's added to the approved list two weeks later.) Case dismissed.
- In 2015, head of Denver jail, and second vice president of the National Fraternal Order of Police, is fired for giving preferential treatment to officer accused of domestic violence and then lying about it. Officer: The firing was retaliation for my union activities, including opposing a city proposal to "scale back the authority [of jail officers] to use force." Tenth Circuit: You already litigated that in state court. No trying again in federal court. (Separately, the officer also recently pled guilty to embezzling $50k from a charity assisting refugees.)
- Darien, Ga. police officer pulls over African American couple, claims they had an obstructed license plate, and arrests them for possessing marijuana. (The drug charges are dismissed, and the officer later resigns after his history of using racial slurs comes to light.) Couple sues. Eleventh Circuit: "Racism in policing is a particularly brutal facet of our country's mistreatment of Black people." But the couple's lawyer sued under 42 U.S.C. § 1981, not the more appropriate 42 U.S.C. § 1983. And even if he had gotten the statute right, the couple would still lose.
- In response to COVID-19, Louisiana and Illinois governors limit public assemblies to 10 people. Louisiana and Illinois churches: Which violates the Free Exercise Clause. Fifth Circuit: Louisiana's stay-at-home order has expired. The suit is moot. (Concurrence: Though I am concerned about the First Amendment implications of exempting protesters but not worshippers.) Seventh Circuit: Illinois' stay-at-home order has expired. But the case is not moot as the order could be reimposed at any time. Nevertheless, it is constitutional; theaters and concert halls are closed, so if anything, Illinois is discriminating in favor of religion by allowing small services.
- And in further pandemic news, the Eleventh Circuit (over a dissent) has ruled that Miami jail officials' response to the pandemic has not been "utter recklessness," so a district court's injunction requiring officials to take numerous steps to protect medically vulnerable pretrial detainees is vacated.
In 2009, a windstorm knocked a tree down on Sarah Hohenberg's Memphis, Tenn. home, and her insurance company refused to pay to repair the structure. Sarah sued the insurance company, but while that was pending, her neighbors—unhappy with the pace of repairs—sued Sarah in Shelby County Environmental Court, an inaptly named court that allows private suits over housing code violations. Outrageously, even though the court has the authority to put people in jail and seize homes, it does not follow any normal rules of procedure; it doesn't record proceedings or authenticate evidence. It doesn't even keep track of most court files. And the court ruined Sarah's life. After she declined to sign over the deed to her home, the court ordered her jailed and she fled the state because she worried that, given the fragile state of her health, an arrest would kill her. The case forced her into bankruptcy, and she is currently homeless. This week, Sarah joined with IJ to force Shelby County to respect the due process rights of defendants in its Environmental Court. Click here for more.