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: a pair of protest cases and a flashback to 1L property law. Click here for iTunes.

  • Man lends $8.5k to acquaintance, who doesn't repay it, even when the man gets a court order (that is upheld by the Rhode Island Supreme Court). Eureka! The feds bust the acquaintance for drug dealing, seize $14k. Can the man recover from the forfeiture proceeds? The First Circuit says no.
  • Swiss art dealer acquires Leonardo da Vinci painting from NYC auction house for Russian fertilizer magnate. Yikes! A New York Times article indicates the dealer perhaps overbilled the magnate $52 million. The magnate sues the dealer in French, Monégasque, and Singaporean courts. Second Circuit: The auction house must produce documents germane to the foreign litigation.
  • Allegation: West Point officers turned a blind eye to sexual assaults, promoted an atmosphere of misogyny on campus that contributed to plaintiff's rape by a fellow cadet. Can plaintiff sue two senior officers for money damages? Second Circuit (over a dissent): It's a military institution, so no.
  • A post-Katrina plan to invest in refurbishing hurricane-damaged properties in New Orleans goes south, forcing the Fifth Circuit to explore some of the less-traveled regions of the rules of civil procedure in a case that pulls in fights about bankruptcy, substituted service of process, and motions to set aside the judgment.
  • A woman by the Dickensian name of Ms. Moody sends many mean messages to her ex-husband, who asks an acquaintance at the Lowndes County, Miss., sheriff's office to arrest her for "cyberstalking" (a charge that is quickly dismissed at a preliminary hearing). Can she sue the ex-husband for violating her constitutional rights? No, says the Fifth Circuit; he may be many things, but a state actor is not one of them.
  • Allegation: Woman flying from Abu Dhabi to Chicago reaches into seatback pocket, gets pricked by hypodermic needle. (An insulin syringe is also found.) Can she sue—not only for the prick but also for the emotional trauma over the possibility of being exposed to disease? Indeed so, says the Sixth Circuit, as the international treaty governing this kind of claim plainly states.
  • Prosecutors seek to forfeit bank accounts, cars, etc., allegedly mixed up in illicit dealings, seek to bar two claimants from challenging the forfeiture, as they are fugitives from criminal prosecution. Claimant 1: I'm not a fugitive; it's just I moved to Gaza, and Israeli and Egyptian travel restrictions won't let me leave! Sixth Circuit: Yeah, the State Dep't says you left Gaza years ago and your lawyer won't tell us where you are. No property for you. Claimant 2: I'm not a fugitive; it's just I moved to Israel and will lose my permanent-resident status if I leave! Sixth Circuit: Most of the gov't evidence comes from conversations with defense counsel at off-the-record status conferences, so we can't review this.
  • Illinois takes custody of seemingly abandoned bank accounts; rightful owners can get their funds back but sans interest (which is earmarked for Illinois pensioners). Owner: I want my money back—with interest, the keeping of which violates the Fifth Amendment. District court: Shoulda sued in state court. Seventh Circuit: No, that would have been "pointless" and "bound to fail," so federal court is theoretically just fine. But one can't sue a state for money under Section 1983, the federal civil rights act.
  • Home of Wisconsin gubernatorial aide who helped craft law limiting public-employee benefits is raided by police with guns drawn. Retaliation for her political activities or a legitimate investigation into suspected misconduct by a public official? The allegations are troubling, says the Seventh Circuit, but the investigators are entitled to immunity.
  • During hearing on revocation of defendant's supervised release, probation officer makes what the Seventh Circuit describes variously as "inflammatory," "unprofessional" and "wildly inappropriate" statements—a "tirade" that "far exceed[s] the bounds of the probation officer's role as a neutral information gatherer." This "misinformation," however, was not "of a constitutional magnitude," so it's back to the pokey for defendant.
  • From his porch, man records and criticizes Rosemount, Minn., police as they arrest his handicapped wife in the driveway. He's arrested and charged with obstruction. (The charge is dismissed for lack of probable cause.) Eighth Circuit: The police have a tough job but no qualified immunity here. Dissent: This ruling makes their job tougher.
  • Allegation: As part of a "shame therapy" program created by a Kauai, Hawaii, warden, female inmates must stand in front of a large group of male and female inmates and detail their sexual histories. The warden distributes video of the sessions to other inmates. District court: The deadline for an inmate to sue started running after her last session, so this suit was filed too late. Ninth Circuit: No, it's reasonable to think the trauma allegedly caused by the program took a few years to surface. The case should not have been dismissed.
  • Jury: A Santa Barbara, Calif., officer used excessive force in taking college student, who declined to drop water balloons he was carrying, to ground. Pay him $120,000. Ninth Circuit: Reversed. The officer is entitled to qualified immunity.
  • Is an off-duty police officer entitled to qualified immunity while providing private security in police uniform at a Honolulu hotel? No, holds the Ninth Circuit. The case should go to trial to decide if the officer violated a man's constitutional rights by detaining him and allegedly doing nothing while hotel security beat him up.
  • The dugong (a marine mammal resembling a manatee) will get its day in court, after the Ninth Circuit ruled that environmental groups have standing to challenge plans to build a U.S. airbase in the waters off Okinawa, Japan.
  • ATF agent, "a disgrace to law enforcement," conspires with Tulsa, Okla., police to steal cash and drugs from suspects, sell the drugs to dealers. Can a woman sentenced to 10 years in prison on the strength of the agent's perjured testimony sue the United States? Indeed so, says the Tenth Circuit.
  • And in en banc news, the Ninth Circuit will reconsider its ruling that a public school system did not violate the Equal Pay Act by paying male employees more than a female counterpart because they earned more in previous jobs.

Educational choice programs give low-income families alternatives to their local public schools—something that middle- and high-income families already enjoy (as they can more readily afford housing in neighborhoods with good public schools or private school tuition). And the empirical evidence suggests (counterintuitively, it seems, to many folks of goodwill) that such programs promote racial integration and boost student performance at both public and private schools. Click here for an IJ white paper assembling the evidence and countering the many myths about private educational choice programs.