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.)

New on the podcast: Flashbang grenades, "Docs v. Glocks," and D.C.'s sign code. Use iTunes? Click here.

  • Fannie Mae and Freddie Mac have long since paid back the $189 billion bailout that saw them through the mortgage crisis, but the now-profitable enterprises continue to turn over their profits to the Treasury (in exchange for the promise of future bailouts) rather than to shareholders. D.C. Circuit (over a dissent): Which is a state of affairs their conservator, the Federal Housing Finance Agency, had the unreviewable authority to agree to (though shareholders can press other claims).
  • Man commits fraud; his license to represent taxpayers before the IRS is revoked. But wait! He was never so licensed, which agents might have known if their records had been correct or if they had informed him of the disciplinary proceedings. (They sent notice not to prison, where they knew he was, but to his former business address, and it was returned unopened.) Man: The IRS harmed my reputation, owes me damages. D.C. Circuit: Not so. One doesn't have a property interest in a license one never received. Concurrence: But if the IRS had barred him from preparing taxes (which does not require a license) upon his release, he'd have a solid claim.
  • Allegation: Pre-trial detainees in NYC facility were forced to stand for hours at a time in overcrowded cells caked with urine and feces, infested with insects and vermin. District court: No one was seriously injured and no one was held there for more than 24 hours, so there's no constitutional violation. Second Circuit: Plaintiffs' claims should not have been dismissed.
  • Man leaves the scene of a crime (arson resulting in death) in his van, repaints the van. A violation of the Sarbanes-Oxley Act, which prohibits altering a tangible object in order to impede an investigation? The Supreme Court recently held the Act only applies to objects capable of recording or preserving information (and so didn't apply to undersized fish allegedly tossed overboard by a commercial fisherman), and the gov't concedes that decision controls here, says the Second Circuit. (The man is still going to prison, however, for acting as an accessory.) Remanded for resentencing.
  • Allegation: New Brunswick, N.J., police drive their patrol car into fleeing suspect. Officers: We parked in his path, and he rode his bike right into us. Third Circuit: Video inconclusive. No qualified immunity.
  • There are over 100 million pounds of uranium in them thar Pittsylvania County, Va., hills (the largest known deposit in the U.S.), but the state prohibits mining it. Does federal law ban states from banning uranium mining? It does not, says two-thirds of a Fourth Circuit panel.
  • In Virginia, candidates for local office are not identified by their party affiliation on voters' ballots, which purportedly furthers the state's interest in preventing such elections from being overwhelmed by partisanship. Fourth Circuit: That interest outweighs any burden the law imposes on the right of association.
  • The Fourth Circuit, sitting en banc, holds that Maryland's ban on "assault weapons" is not subject to strict scrutiny, reasoning that such weapons are not protected by the Second Amendment—and that, if they were protected, intermediate scrutiny would be appropriate and the ban would pass muster. (We discussed the original panel decision on the podcast.)
  • After conviction for credit-card fraud, Virginia man has his right to own a gun restored; he becomes a contractor for Department of Homeland Security and carries a gun at work. He moves to Maryland, which bars him from possessing a gun without a full pardon from Virginia's governor. Fourth Circuit: Which is not unconstitutional.
  • After dust-up with another student, 12-year-old is taken to Tupelo, Miss., jail and subjected to a strip search and body-cavity inspection. Does the Fourth Amendment permit such treatment of juveniles? The gov't couldn't come up with a single example of such a search turning up contraband, says the Fifth Circuit, but plaintiff bore the burden of proving the policy's unreasonableness, and she failed to carry it.
  • Texas legislators recently amended the state's human-trafficking law in such a way that landlords, homeless shelters, and others who provide services without regard for immigration status fear they could run afoul of the law. Fifth Circuit: The law prohibits hiding people, not giving them a place to stay.
  • Informal group of White County, Tenn., parents want to spend less than $250 on lawn signs, stickers, and the like to support/oppose candidates for school board. They refrain after learning they must register as a political committee (and comply with a myriad of attendant requirements). Does the law impermissibly chill political speech? No need for a somewhat similar case to work its way through state court, says the Sixth Circuit; the district court can address the question now.
  • Medically frail man gets ride to the store from female acquaintance. Yikes! She flees from a police stop. The man calls 911, tells dispatch he wants no part of the chase and that he fears for his life. Pursuing officers are erroneously told that he has a felony warrant and is dangerous. Louisville, Ky., police eventually drag him out of the vehicle, breaking his leg and arm. Sixth Circuit: Qualified immunity for the officers.
  • Medically frail man is convicted of giving one OxyContin pill to a friend. He dies of starvation and renal failure 37 days after entering Indiana state custody. Seventh Circuit (2016): His family can't sue. Dissent: Apart from the manner of his death, that corrections officials lost and did not replace his neck brace (that he needed to keep his head upright) and voice prosthesis means this should go to trial. Seventh Circuit (en banc): His family can sue. (We talked about the 2016 decision on the podcast, starting at 12:00, and, in an annual report, heralded the dissent as a sterling example of judicial engagement (p. 44).)
  • Suspects recruited by undercover agent to rob fake drug-stash house make incriminating statements while they're in Chicago police van. District court: Suppress their covertly recorded conversation; there is a reasonable expectation of privacy in a police van. Seventh Circuit: Not so.
  • Over years-long period, Yolo County, Calif., sheriff repeatedly hugs a subordinate and kisses her once—in view of others. Ordinary workplace socializing or sexual harassment? Ninth Circuit: A jury should decide.

Last week, a federal judge certified four named plaintiffs to stand up for tens of thousands of individuals whose cars, cash, homes, and other property were threatened by Philadelphia's civil forfeiture machine. Each year, the program reaps nearly $6 million from citizens, regardless of whether they have even been charged with a crime, and police and prosecutors use these proceeds to pay for salaries and other expenses. Such "policing for profit" violates the right to due process, and those who have suffered will soon get their day in court. Read more here.