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.)

In 2014, a Colorado think tank wanted to run radio ads urging listeners to urge their elected officials to support criminal sentencing reforms but held off because it would have meant turning the names and addresses of the think tank's donors over to the federal government. Click here to read an IJ amicus brief urging the Supreme Court to recognize that mandating such disclosures chills speech.

This week on the podcast: indefinite detention, lying child-welfare workers, and the SEC's unconstitutional ALJs. Use iTunes? Click here. Read on, friends.

  • In 2014, New Hampshire legislators authorized abortion clinics to demarcate 25-foot buffer zones outside their facilities. Anti-abortion activists: Which violates our First Amendment rights. First Circuit: No clinic has set up such a zone, and it's entirely speculative whether one ever will. So this challenge is not ripe.
  • Updated from last week: Deported illegal immigrant returns to U.S. to care for his terminally ill common-law wife and raise their grandson, who had been abandoned by their son. He also kicks their other son, a drug addict, out of the house. The other son informs the authorities of his father's illegal status. Third Circuit (Dec. 30): In light of the too-lengthy but now-completed sentence the immigrant received, the terms of his supervised release should be relaxed. Third Circuit (Jan. 3): Hold off on that. Third Circuit (Jan. 9): And the Dec. 30 opinion is good law again. (Though he's likely in ICE custody or deported at this point.)
  • Officers pull over two women in Brazoria County, Tex., and digitally probe their intimate areas for marijuana without a warrant (and without success) by the side of the road. Excessive force? Quite possibly, says the Fifth Circuit, so an officer who did not intervene to prevent the searches is not entitled to qualified immunity.
  • Law clerk at Texas appeals court suspects chief justice has committed financial misconduct, reports it. Allegation: The chief justice sees to it that a job offer offered to the clerk (by a different justice) is withdrawn. Illegal retaliation? The chief justice is not entitled to qualified immunity, said two-thirds of a Fifth Circuit panel last fall. This week: There is no cause to reconsider the matter.
  • Allegation: Decatur County, Tenn., officer attests that woman sold drugs; a grand jury indicts. Yikes! Video of the sale, which the officer did not review, shows a different woman. Sixth Circuit: False testimony to a grand jury is protected by absolute immunity, and the plaintiff cannot prove her malicious-prosecution claim without relying upon that testimony.
  • Oakland County, Mich., officer busts 19-year-old for pot, convinces her to turn informant. The officer lets slip her role in dealer's arrest—during the arrest. The dealer murders her. Sixth Circuit: The teen's mother can sue the officer.
  • In order for family members of legal immigrants to obtain approval to stay in the country, they must arrive after the principal visa holder. Feds: So a Lebanese immigrant who arrived 24 days before his father (in 1995) and was mistakenly permitted to stay cannot become a naturalized citizen (in 2017). Sixth Circuit: That's what the law says.
  • Bay County, Mich., guard smuggles prescription mouthwash into jail for inmate with untreated gum disease. No good deed! Gossip about the incident prompts an investigation into prescription drug trafficking by guards. Sixth Circuit: A different guard who pushed back against the investigation (by urging fellow guards to disobey orders) cannot sue over his discharge—which was perhaps also motivated by his admission that he had sex with an inmate.
  • District court: A Sac County, Iowa, officer's claim that he smelled marijuana emanating from a suspect's apartment from 20 feet away (in windy weather) was plainly untrue. Suppress the evidence. Eighth Circuit: Reversed. The suspect's statements to an investigator two days after the search were sufficiently attenuated from the defective search warrant.
  • Apple prohibits third-party developers from selling apps to iPhone users without Apple's permission, which entails developers turning over a 30 percent cut of their sales. An antitrust violation? Plaintiffs have standing to find out, says the Ninth Circuit.
  • Allegation: Maricopa County, Ariz., corrections officials assign female guards to stand guard in close proximity to male pretrial detainees as they shower. A Fourth Amendment violation? The complaint should not have been dismissed, says the Ninth Circuit.
  • Drug doggie alerts to airline passenger's carry-on; DEA agents find no drugs (or at least don't mention any to the court). But they do find nearly $100k in cash. The passenger misses 35-day deadline to challenge forfeiture by three minutes, purportedly because an overnight delivery service failed to perform as advertised. Ninth Circuit: Three minutes late and a hundred thousand dollars short.
  • Allegation: Florida officers accessed DMV data on woman and her husband over 600 times without a legitimate law-enforcement purpose. Eleventh Circuit (2016): The statute of limitations started running on their Driver's Privacy Protection Act claims when the violations occurred, not when the couple found out about them (via a public records request). They can't sue. Eleventh Circuit (2017): Same deal with their Section 1983 claims.
  • SWAT team bursts into drug suspect's home, ignites flash-bang grenade "very close" to nine-month-old. Indiana court (over a dissent): Unreasonable use of force. Suppress the evidence.
  • On news programs, lawyers allege that hospital used screws not approved for medical use in spinal surgeries and billed insurers $12k per screw (which cost only $65). Hospital owner: That's all untrue, and I didn't hire prostitutes to ply physicians for referrals either. California court: The lawyers' allegations were presented in the context of the lawsuit they had just filed, so it's not defamation. The hospital owner (who previously pled guilty to bribing a state congressman, among other things) can pay the lawyers' legal fees.
  • Man allegedly grows marijuana in sizable greenhouse in his backyard. Police destroy the greenhouse with chainsaws, vehicles and leave a bit of a mess. Texas court: Could be an unconstitutional taking.

Many states do not adequately protect innocent people from having their property forfeited by law enforcement. But only a handful go so far as to require property owners to post a bond before they can challenge a civil forfeiture in court. Fortunately, Michigan is no longer among them. This month, Gov. Rick Snyder signed legislation repealing the requirement that owners cough up between $250 and $5,000 within 20 days of a seizure or automatically lose their property. (Gone too is the gov't's ability to force property owners who challenged a forfeiture and lost to pay for the gov't's litigation expenses.) That leaves four states—Hawaii, Illinois, Rhode Island and Tennessee—that impose such a bond requirement. Read more here.