The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Short Circuit: A roundup of recent federal circuit court decisions


I've much enjoyed the Institute for Justice's Short Circuit newsletter—written by John Ross—and I'm delighted that IJ has agreed to let me pass it along, today and in weeks to come. I think you'll find it both amusing and informative. (IJ also mentions some of its cases in these newsletters, but I'm glad to pass these along as well, especially since I think very highly of IJ's works, and find that many of their cases are highly newsworthy.)

Is the default standard of review in modern constitutional law itself unconstitutional? Together with Professor Randy Barnett, head of the Georgetown Center for the Constitution, the Center for Judicial Engagement recently hosted a symposium on that very question. The papers presented there will soon be published in the Georgetown Journal of Law and Public Policy. For a draft of Professor Barnett's foreword to the GJLPP's symposium issue, click here.

This week on the podcast: free speech on campus, free speech off campus, free speech in front of a courthouse, and prevailing wages for a private project. Check it out on Soundcloud. Or tune in via iTunes. Read on, friends.

Federal law requires that court orders authorizing a wiretap identify the official who pre-approved the underlying applications. Is it "overly formalistic"—as DOJ argues—to conclude that a string of asterisks is not a sufficient identification? D.C. Circuit: Unless there's a Deputy Assistant Attorney General in the Criminal Division named Mr. ******, we're suppressing the evidence.

The DOJ may lock up immigrants it seeks to deport but must provide them a bond hearing (to assess whether they might flee or threaten public safety if released) within a reasonable amount of time. How long is reasonable? Some circuits have said six months, but the First Circuit lands on the other side of the split, holding that courts should weigh the specific facts of each petitioner's case before ordering such a hearing.

A Google search can yield content that infringes copyrights or allows one to view or purchase contraband. Is the company illegally profiting off such sites—or at least insufficiently vigilant in taking them down? Fifth Circuit: Google cannot sue to block a demand from Mississippi's attorney general for documents that might shed light on the issue. Rather, the company can have its day in court if and when the attorney general sues to enforce the subpoena.

After long prison stint, man comports himself admirably—up until attacking a neighbor with a "garden implement" (on account of the neighbor's insufficient vigilance regarding the location of his dog's leavings). Sixth Circuit: You can call a machete a garden implement if you want, but you nearly killed a guy with it, so back to prison.

Did the FBI need a warrant to obtain cell-phone records revealing (not terribly precisely) suspects' locations around Detroit during a spate of robberies? One doesn't have an expectation of privacy in data about oneself stored by one's telecom provider, says the Sixth Circuit, so no.

A woman accused of killing a prisoner and forcing others to drink his blood can be extradited to Bosnia to face trial for war crimes, rules the Sixth Circuit.

Allegation: Various male DuPage County, Ill. sheriff's deputies were not fired for: DUI; sex in a squad car with the wife of a suspect; groping a teenager; stealing from a record store; demanding a police discount for merchandise; refusing to pay a prostitute for services rendered and arresting her when she protested; tipping off a brothel to an impending investigation; watching porn on duty; much more. So firing a female deputy for attempting to collect a private debt while partially in uniform was sex discrimination. Seventh Circuit: Nope. Dissent: We should have remanded for more discovery.

A drug-doggie sniff of the exterior of a house is a search, according to the Supremes, so police need a warrant. What about the sniff of an apartment door (from a common hallway)? Also a search, says the Seventh Circuit. To hold otherwise would extend more Fourth Amendment protection to house dwellers than apartment dwellers (the latter of whom are more likely to be poor, minorities).

Seventh Circuit, 2014: A Wisconsin law requiring voters to show photo ID does not seriously burden the general public's right to vote; it's not that hard to get an ID. Plaintiffs: Okay, but for a handful of folks it is legitimately difficult, if not impossible, to secure an ID. Seventh Circuit, 2016: Those folks have a case.

Seventh Circuit: Milwaukee must pay damages to a strip-club owner; now-repealed ordinances imposed unconstitutionally unpredictable licensing requirements that prevented him from conducting his business.

Diners at dozens of P.F. Chang's restaurants had their debit- and credit-card information stolen. Can a diner who did not ultimately pay any fraudulent charges file a class action? District court: No harm, no standing. Seventh Circuit: He spent time and money resolving several fraudulent charges and monitoring his credit, so he has standing. Plus, he might be at risk of identity theft.

Los Angeles County sheriff's deputies fail to note numerous, obvious differences between Mario A. Garcia and Mario L. Garcia and imprison the former based on warrant for the latter. Ninth Circuit: No immunity for the sheriff, the department, or the county.

Police arrest activists passing out jury-nullification literature near Denver courthouse. Tenth Circuit: As long as plaintiffs aren't disruptive, they are free (for the time being) to urge potential jurors to acquit defendants who may be guilty but whose conviction would be unjust.

Utah County, Utah prosecutor investigates, publicly castigates polygamous family (the subjects of a popular reality tv show). The family sues: The state's ban on polygamy violates our rights. Tenth Circuit: The prosecutor has since backed off, and the family has since moved to Nevada, so the challenge is moot.

And in en banc news, the Tenth Circuit, over contentious dissents, will not reconsider its denial of qualified immunity to an officer who shot and killed a homeowner. We discussed the case on the podcast. The original panel decision is here.

Dallas officials envision a Starbucks or Macaroni Grill where Hinga Mbogo's thriving auto-repair shop has sat for 30 years. (Hinga is not just any mechanic. Check out his Yelp reviews.) So the city offered to buy the property at an agreeable price, right? False. Instead, officials rezoned Hinga's property and ordered him to move his business elsewhere, even though he owns the land. This week, IJ presented the city council with a petition with over 80,000 signatures urging the city to let him stay. No dice. Council members denied him a special permit for his now-nonconforming use. To learn more about amortization, the process that makes this abuse of property rights possible, click here.