The Volokh Conspiracy

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


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.)

Back in January 2016, San Diego law enforcement raided James Slatic's legal medical marijuana business. Even though the district attorney never filed criminal charges, that didn't stop them from seizing over $100,000 from the Slatic family's bank accounts, including college savings for James's teenage daughters. But last week, following a 15-month legal battle with procedural twists and turns that almost rival Jarndyce v. Jarndyce, a judge finally ordered the DA to return the Slatic family's life savings. Read more here.

On last week's podcast: A spooky cellphone warning, a sign on a stick, a "ruminating" judge, and an update from the civil forfeiture hotbed of Tenaha, Tex. Click here for iTunes.

  • A reporter covering the sentencing of a convicted double-murderer misattributes statements regarding the defendant's lack of contrition and belief the murders were justified to the sentencing judge, rather than the prosecutor. The double-murderer—apparently quite put out—sues for defamation. D.C. Circuit: No actual malice, and therefore no defamation.
  • Would-be doctors conspire with a medical-board employee to insert forged passing test scores in their files in order to obtain licensure. Feds: The doctors obtained money by mail fraud because they eventually earned money by practicing medicine with their ill-gotten licenses. First Circuit: While other parts of the conviction stand, the underlying statute requires a more direct connection between the fraud and the ill-gotten gains. Dissent: Not so! All that matters is that the gains were ultimately gotten.
  • A city authorizes an economic development loan for a minority-owned business, with the loan to be secured by a second-position lien, behind the mortgage, on the business owners' home. The city later learns that the owners failed to disclose a home equity line of credit on the property. Citing increased risk, the city refuses to make a loan secured by a third-position lien—despite the fact that it previously granted, to a non-minority business, a loan secured by a third-position lien. Over Judge Wilkinson's dissent, the Fourth Circuit says a claim for race discrimination may proceed.
  • While leaving court-ordered community service, a couple is arrested for failing to report for court-ordered community service. (Huh?) The couple spends a nice, long Easter weekend in jail, during which one of them is fired from her job. After four days, the judge who issued the warrant for their arrest says, "Whoops, sorry 'bout that—just a little paperwork mix-up. You're free to go." (We're paraphrasing, but not really.) And what does the Sixth Circuit say? The circumstances are "unfortunate and regrettable," but the "plaintiffs have not demonstrated a violation of their constitutional rights." (We're not paraphrasing.)
  • The Chicago Police Department issues an order requiring officers to cover their tattoos. Three tatted officers file a free speech challenge, lose in the trial court and appeal. Meanwhile, the officers' union files a grievance claiming the no-ink-display order violates its collective bargaining agreement. An arbitrator rules for the union, so the city revokes the order. What happens to the officers' free speech case? The Seventh Circuit dismisses the appeal as moot (good for the city) and vacates the judgment below (good for the officers).
  • Prison holds inmate in solitary—with 24-hour lighting, rusty water, and one hour of daily exercise—for over ten years. Seventh Circuit: The prison's periodic "review" of whether confinement remains justified, consisting of the same two-line decision issued every thirty days, might not be sufficient to satisfy due process.
  • Teenage college student falls into a relationship with a drug smuggler, gets slapped with federal charges. After court-appointed lawyer misses pre-trial motion deadline and generally fails to communicate, the student asks for a new lawyer. Judge denies the motion and badgers the student to take a plea. She takes the deal, is sentenced to over ten years. Ninth Circuit: The plea is vacated. (Kozinski, concurring: The student faces over 40 years if she goes to trial, so I hope this doesn't end badly.)
  • Human rights advocacy group files FOIA request seeking names of foreign students attending "WHINSEC," a DOD training facility. DOD denies the request, citing the students' personal privacy. Ninth Circuit: Totally kosher. (Watford, dissenting: Particularly given past human rights abuses committed by graduates of the facility—among them Manuel Noriega—the public has a right to know who is attending.)
  • Police enter the home of an armed, mentally ill and intoxicated man, who ends up shot to death. A reasonable jury could find that, after kneeling in compliance with an officer's commands, the man was shot the moment his hand touched a knife, even though he was at least six feet away from any officer and was never ordered to drop the knife. If those are the facts, says the Ninth Circuit, the shooting would indeed violate the Fourth Amendment, but the Supreme Court has repeatedly warned us to be more careful about our qualified-immunity holdings. Message received: The officers are immune.
  • Death row prisoner, unsatisfied with choice between lethal injection or electrocution, files suit demanding firing squad. Eleventh Circuit: Which is not feasible. Dissent: I'm pretty sure the government of Alabama has access to guns.
  • And in en banc news, the Ninth Circuit will reconsider a ruling holding that the Federal Trade Commission lacked statutory authority to go after AT&T for (allegedly) inadequately disclosing their practice of "data throttling" for customers with unlimited-data plans.

Following many high-profile stories of wrongful seizures, on Tuesday, Iowa Gov. Terry Branstad signed a new conviction requirement for civil forfeiture. Though the requirement does not apply to property worth more than $5,000, Iowa's new law should still protect the vast majority of innocent Iowans from abusive forfeitures. Read more about the bill here. Over in Colorado, lawmakers have overwhelmingly backed a bill that would shine a light on civil forfeiture in the Centennial State. Some of the new requirements include: obliging agencies to report if they filed criminal charges when seizing property and disclosing where that money goes (hopefully not toward Zambonis and margarita machines). The bill also closes a lucrative loophole for forfeiture funding. Click here to read more.