The Volokh Conspiracy

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

Volokh Conspiracy

Short Circuit: A roundup of recent federal circuit court decisions


[Here is the latest edition of the Institute for Justice's weekly Short Circuit newsletter, written by John Ross.]

Is panhandling constitutionally protected speech? Verily, argues Evan Bernick of the Center for Judicial Engagement. Read more here. Separately, IJ Senior Attorney Anthony Sanders recently penned a masterful, scholarly article about "Baby Ninth Amendments" that just might be of interest.

Would you prefer to receive Short Circuit by email on Friday afternoons? Subscribe here. Read on, friends.

  • Erstwhile website "" allowed people to leave (mostly cruel) reviews of others' personal qualities and offered them the chance to dispute the content of those reviews for a $30 membership fee. (In fact, the membership bought one nothing.) Though the site boasted millions of profiles, it turns out most were just scraped from Facebook, and there were few actual users. The First Circuit largely upholds the FTC's sanctions against the site's founder.
  • New York law prohibits hospitals from profiting from patients' requests for their own medical records. Yikes! Defendant hospitals outsourced such requests to company that advertises itself as a revenue generator for hospitals. District court: But plaintiffs' attorneys paid for the records, so the suit's a no go. Second Circuit: Reversed.
  • Chain of beauty schools closes abruptly, leaving students heavily indebted and unqualified to obtain cosmetology licenses. Students allege they are entitled to debt cancellation, but the Department of Education continues to collect on the loans (including directing the IRS to seize tax refunds). Second Circuit: The courts can and should review the DOE's decisions here, so the district court was wrong to dismiss the case.
  • Allegation: Man with neurological disorder that affects his movement and speech but not his mental faculties reports theft to Waynesboro, Va. police. Officers detain him, asserting that he's mentally ill and poses a threat to his neighbors; he spends six days in a mental-health facility. Fourth Circuit: No qualified immunity for the officers.
  • Allegation: Investigators lie to grand jury, say they found child porn on Soddy Daisy, Tenn. pastor's computer. Moreover, investigators knew-but did not tell the grand jury-that the pastor's wireless connection was not password protected and could likely be accessed from a nearby motel (among other exculpatory details). Sixth Circuit: Lies (and lies of omission) to a grand jury by witnesses are protected by absolute immunity, so the now-former pastor cannot sue.
  • Train engineer needs to throw up, but the bathroom is gross, so he proceeds to catwalk outside locomotive, from whence he falls and sustains serious injuries. Sixth Circuit: Federal train-bathroom regulations require once-daily cleanings, not cleanliness at all points during the day, so summary judgment to the railroad.
  • Retired nurse, concerned his mother is having a stroke, calls 911. Allegation: Without provocation, Cleveland police officer body slams, handcuffs him. Sixth Circuit: No qualified immunity.
  • Sixth Circuit: Exotic dancers arrested in Mahoning County, Ohio at various times for various crimes plausibly allege that their arrest warrants were defective because they contained so little information. And yet they cannot prevail on their Fourth Amendment claims because they must also show they were unreasonably seized, and they haven't.
  • Using phone-app translator, Illinois trooper asks Spanish-speaking motorist for permission to search for the motorist's car. Seventh Circuit: Which the motorist no doubt interpreted as a request for permission to search in his car, mistranslation notwithstanding. So the motorist consented, and there's no need to suppress the evidence.
  • Mailman tosses mail in the woods, a federal crime. Ex-mailman: Do I really need to meet with my probation officer in my home (as early as 6 a.m. and as late as 11 p.m.)? The sentencing judge didn't need to give a detailed explanation for requiring home visits, says the majority of a Seventh Circuit panel, so yes.
  • Lawyer for Indiana plastics manufacturer tells union officials that long-negotiated final draft of new collective bargaining agreement looks "fine." But wait! The manufacturer declines to sign. (There's a petition afoot to decertify the union.) Seventh Circuit: Once the lawyer said the language looked "fine," the company was legally required to sign (or point to something in the document that was inconsistent with what had been negotiated).
  • Allegation: On learning Evansville, Ind. police are at his door with an arrest warrant, man makes to surrender, but a police dog attacks anyway. Man: I wasn't resisting. The dog tore out my calf. Officer: I couldn't call him off until you were handcuffed. Seventh Circuit: No qualified immunity.
  • Did Chicago college fire professor because of his advanced age (illegal) or because he plagiarized 10,000 words in his textbook (legal)? Seventh Circuit: The evidence points to the latter.
  • Prosecutors to just-released convict: Take a polygraph test concerning other crimes you might have committed (that we don't know about), or go back to prison. Tenth Circuit: Confessions to past crimes could be used against him at trial, and the Fifth Amendment bars forcing him to choose between self-incrimination or re-incarceration.
  • And in en banc news, the Tenth Circuit will not revive a challenge to Utah's polygamy laws.

In Baltimore, large swaths of the city are off limits to certain mobile vendors, thanks to a 2014 ordinance requiring them to keep 300 feet away from fixed establishments that sell the same type of food, other merchandise or service. The purpose of the rule? Naught to do with public health or safety. Rather, city officials mean to protect restaurant owners and retailers (who pushed for the ordinance) from competition. Which is unconstitutional, and this week IJ filed suit on behalf of two food truck owners to put a stop to it. Learn more here. Concerned about mobile food vendors' health-and-safety record? No need! Check out the data.