The Volokh Conspiracy

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


Short Circuit: A roundup of recent federal court decisions

Wealth-based pretrial detention, resegregation, and violent retribution for political participation.


After the riots in Ferguson, Mo., the DOJ investigated and found officials there routinely harass citizens with citations, court summons, and even arrests over minor code violations. To thwart such abuses, which are hardly limited to Ferguson, the Missouri legislature enacted a series of reforms to ensure cities use their code enforcement authority to protect the public from harm rather than fill municipal coffers. This session, however, legislation has been introduced to undo much of that good work. IJ Attorney Josh House has more in the St. Louis Post-Dispatch.

New on the Short Circuit podcast: impartial forensics, felon re-enfranchisement, and the constitutionality of the Consumer Financial Protection Bureau. Click here for iTunes.

  • New York Attorney General: Nonprofits seeking to raise money from New Yorkers must turn over a list of their donors to the state each year—or face fines of $100 per day. Nonprofit: Which falls afoul of NAACP v. Alabama, where the Supreme Court held that the NAACP didn't have identify its supporters, lest they face violent retaliation. Second Circuit: Not so. It's unlikely this group's donors would face similar reprisals, even if the state were to accidentally leak their names to the public.
  • Employees of contractor updating NYC's time-keeping software obtain bribes, kickbacks for steering work to subcontractor at inflated rates. The employees get caught; the contractor pays settlement to the gov't. The contractor's insurer pays $15 mil to the contractor pursuant to theft-by-employee policy. To recoup the payout, can the insurer get a piece of the restitution the thieving employees were ordered to pay? The Second Circuit says no. [Updated] But maybe they can get a piece of the forfeiture pie.
  • Debtor doesn't pay $1,289 owed to gym; a debt collector sends a letter offering to settle matter for $129. Yikes! The six-year statute of limitations on the debt has passed. Did the collector violate the law even if it didn't threaten legal action? Maybe so, says the Third Circuit; an unsophisticated debtor might presume the collector's settlement offer implied a legal obligation to settle the debt. (For more on why this case is fascinating, check out CA3blog.)
  • The third iteration of Trump's Travel Ban, which adds North Korea and Venezuela to the list of countries whose nationals are temporarily barred from entering the country, is unconstitutional, says the Fourth Circuit, sitting en banc, with a bevy of varying opinions; the other six countries on the list are majority Muslim, and it's clear that the ban was intended to discriminate against Muslims.
  • Salisbury, Md. school cop handcuffs compliant 10-year-old who'd hit another girl three days previous. Excessive force? Yes, says two-thirds of a Fourth Circuit panel, but, says three-thirds of the panel, the officer gets qualified immunity.
  • In Harris County, Tex.—where over 50,000 people were arrested in 2015 for misdemeanors—judges adopt unwritten formula making it all but impossible for poor misdemeanor arrestees to make bail. Wealthy arrestees routinely make bail. Fifth Circuit: A system where a "wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration" is unconstitutional.
  • Louisville, Ky. man arrives home to find police officer parked in his space. The officer declines to move; the man utters profanity; the officer follows the man into his home, tases him. Unable to pay $1.5k bail, he spends two weeks in jail, loses his job. A federal jury convicts the officer of making an unreasonable arrest, filing bogus charges. Sixth Circuit: No need to reconsider the verdict or the officer's two-year prison sentence. (Much more on the officer via Sixth Circuit Blog.)
  • Doctors at Columbus, Ohio hospital suspect parents of child abuse, conduct additional tests, and alert child services. Can the parents sue the hospital for conducting unreasonable searches on behalf of law enforcement? They cannot, says the Sixth Circuit.
  • Man convicted in 1984 of shooting into an occupied building gets nabbed for gun possession in 2012; he gets 15-year mandatory-minimum sentence. But wait! Is shooting into an occupied building a violent crime? The Sixth Circuit says no; he didn't actually hurt anyone, so it doesn't count towards the mandatory minimum. Resentence him.
  • Public service announcement: If you file briefs in the Seventh Circuit that raise frivolous arguments and fail to comply with the circuit rules, Judge Sykes may have something to say about that.
  • Concerned that Border Patrol agents are racially profiling, unlawfully searching, and using excessive force at Arivaca, Ariz. checkpoint, area residents observe, video record, and protest from a distance. Ninth Circuit: And in retaliation, the agents may have violated residents' First Amendment rights. Their suit should not have been dismissed. (More via the ACLU.)
  • Pretrial detainee's bail is set at $1 mil even though officials find he is unlikely to abscond or commit new crimes. (He's been in jail since last July.) Grant him habeas? Prosecutors: No objection here; this is probably unconstitutional. California courts: Still, habeas denied. District court: Not for us to interfere in an ongoing state proceeding. Ninth Circuit: Give him a new bail hearing within two weeks or let him go (pending trial).
  • Allegation: Roseville, Calif. police officials disapprove of probationary officer's extramarital affair with a fellow police officer, fire her because of it. Ninth Circuit (creating a circuit split): Her private sexual activities are not the department's business (unless they affect her job performance). Her suit should not have been dismissed.
  • Immigration detainees face solitary confinement, criminal sanctions if they decline to clean common areas in Aurora, Colo. private prison. Illegal forced labor? No error for the district court to have allowed the class action to proceed, says the Tenth Circuit.
  • Allegation: Del City, Okla. middle school teacher unjustifiably and profanely berates student, who reports the incident. In retaliation, the teacher follows the student into a bathroom, forcefully opens a stall door, knocking over the student, whose pants are down. The teacher berates the student further. District court: Qualified immunity. Tenth Circuit: Reversed.
  • Residents of Gardendale, Ala. (who are mostly white) seek to form new school district, which will have the effect of excluding students from surrounding areas (who are mostly black) from the town's schools. Eleventh Circuit: No new district. The plan falls afoul of a 1971 desegregation order.
  • In 2002, owner of dilapidated industrial property in Queens, N.Y. entrusts its care to a group of artists, who improve its condition and cover it in graffiti, turning it into a tourist attraction and cultural site. In 2013, the owner, who plans to demolish the warehouses and build luxury condos, whitewashes over the art. District court: Which violated the Visual Artists Rights Act; pay $6.75 mil in damages to 21 artists. If the owner had waited a few more months while he got his building permits in order; he'd have been assessed a far more modest penalty.

In 2015, the City of Indio, Calif. brought criminal charges against Ramona Morales, a housekeeper and retired makeup saleswoman. Her offense? Tenants in the rental home she'd scrimped and saved to buy were violating city code by keeping chickens in the backyard. Ramona went to court, paid a $225 fine, and made sure the chickens were removed. She thought the matter was settled; it was not. Instead, a year later the private law firm the city hired to handle its code enforcement prosecutions demanded that she pay an additional $2,628—to pay for the firm's time prosecuting her—or that it would place a lien on the house and potentially sell it. She appealed the fine, lost, and the firm billed her for its time working on the appeal. Ultimately, she paid nearly $6,000 over something that could have been handled with a phone call. Last week, Ramona teamed up with IJ to put a stop to the abusive tactics, filing a class action on behalf of residents prosecuted and forced to pay outrageous fees over minor code violations for things like long grass, broken windows, or having address numbers that are sun damaged. Read more here.