The Volokh Conspiracy

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Short Circuit: A roundup of recent federal court decisions


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

If anyone is in the market for enforcing limits on executive power, Evan Bernick of the Center for Judicial Engagement has a judicial philosophy that just might suit. Read more here.

  • Veteran suffering from PTSD calls suicide hotline, admits to gun ownership, but repeatedly explains he doesn't have a weapon at the ready. His interlocutor calls D.C. police anyway, who send in SWAT. He surrenders. Police search his home, see nothing concerning in plain view. Hours later, they re-enter, rip the place apart—and (allegedly) leave the stove on and the front door unlocked for two weeks while he's in jail. D.C. Circuit: The second search violated the Fourth Amendment.
  • Now comes Judge Selya providing fodder for this week's vocabulary quiz (in a First Circuit case involving a legislator-turned-government-contractor's duplicitous business practices): satrap, immurement, gallimaufry, helpmeet, calumnize, and supererogatory.
  • Pretrial detainee allegedly acts up. New Hanover County, N.C., corrections officials throw him in solitary without a hearing. Fourth Circuit: Due process requires a hearing for pretrial detainees.
  • Fourth Circuit: Virginia's geriatric-release program, which affords petitioner (who committed his crime at age 16) a chance for release at age 60, falls afoul of the Supreme Court's ruling that non-homicide juvenile offenders sentenced to life must have a meaningful opportunity to get out early.
  • Allegation: Butner, N.C., prison doctor denies insulin to confrontational inmate. Deliberate indifference to medical need? No qualified immunity for the doc, says the Fourth Circuit, but the warden's failure to provide a specialized diabetes diet while the inmate was in solitary does not fall afoul of the Eighth Amendment.
  • Kansas, City, Mo., officer frisks man standing relatively near stolen vehicle, finds key to the vehicle in his pocket, and finds contraband in the car. Suppress the evidence? Yep, says the Eighth Circuit, the man had a "reasonable expectation of privacy in the contents of his pants pockets."
  • Two Colorado advocacy groups advocate to the public, fail to file requisite reports with state disclosing their donors' personal information, among other things. Tenth Circuit: The district court improperly declined to hear their constitutional challenge to Colorado's disclosure law.
  • Bloomfield, N.M., officials install Ten Commandments monument on municipal property in effort to "protect us from our evil." Tenth Circuit (with pictures): Though funding for the monument came from private groups and secular displays like the Bill of Rights were added later, the monument is an unconstitutional endorsement of religion.
  • This mineral-rights case provides a textbook example of the soundness of the "law of the case doctrine," which permits courts to avoid giving litigants a mulligan on issues resolved in prior proceedings (in the case at hand), writes Judge Gorsuch of the Tenth Circuit, lest things devolve into an "extended game of litigation whack-a-mole."
  • Forest Service officials decline to put out small wildfire in Colorado's Wet Mountains, a remote national forest, opting instead to allow for a controlled burn. Yikes! The fire takes off, torches private property. Can a ranch owner sue? It's not for us to second-guess officials' judgments, says the Tenth Circuit.

Between 2010 and 2015, the DEA paid over 9,500 confidential informants at the TSA, Amtrak, and private airline and shipping companies. The problem? The incentives. Informants can obtain 25 percent of any forfeited cash (up to $500k), and there is evidence, according to a recent audit, that informants heavily prioritize cash caches over illegal drugs or other contraband. For instance, out of 381 cases initiated by commercial airline employees, only two cases involved illegal substances. Total cash seized in those 381 cases? Over $14 million. Click here to read more.