The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Friends, over at the SCOTUS101 podcast, Sheldon Gilbert, the director of IJ's Center for Judicial Engagement, talks Slaughterhouse, in which the Supreme Court gutted the newly ratified Privileges or Immunities Clause of the Fourteenth Amendment—to the country's great and continued detriment. Click here to listen.
- Dual U.S. –Saudi citizen captured on battlefield in Syria denies he's an ISIS combatant. The U.S. military detains him without charging him with a crime or bringing him before a neutral magistrate (for seven months and counting). ACLU: Either prosecute or release him. Gov't: Instead, we'll transfer him to Saudi Arabia. D.C. Circuit (over a dissent): No transfer. (More on the case from Lawfare.)
- After lengthy, complicated process, the feds grant Irish airline Norwegian Air a permit to operate in the U.S. (We have treaty obligations with Europe to allow such flights.) U.S. and European airline employees' unions sue the feds: Norwegian Air doesn't pay its staff enough; it's not in the public interest to allow the low-cost airline to operate. D.C. Circuit: Case dismissed. Judge Sentelle, concurring: And, but for precedent with which I disagree, should never have been allowed in court.
- Securities trader is convicted of fraud for lying to customers about price he paid for residential mortgage-backed securities. Trader: That was standard industry practice; buyers of such securities are sophisticated enough to not be misled by such tactics. Second Circuit (2015): Man's got a point. New trial. (In 2017, he's acquitted on nine of 10 counts.) Second Circuit (2018): New trial on the one remaining charge—and let him out of prison. The district court erred in allowing a bond buyer's testimony that he (erroneously and unfoundedly) believed defendant was his agent.
- Allegation: Two guards at Coxsackie, N.Y. prison tell inmate that unless he lies about a minor accident (so as to falsely inculpate another guard), they'll get him confined to his cell 23 hours a day. The inmate declines; he's so confined for six months. Second Circuit: Refusing to snitch is protected First Amendment conduct. But this is the first time we've held as much, so qualified immunity for the two guards.
- Arrestee suffers fatal neck injury in Baltimore police van, sparking civil unrest. Several officers are indicted, put on trial for manslaughter, second-degree murder—but no convictions. Can they sue the prosecutor for malicious prosecution or defamation? No, says the Fourth Circuit; the prosecutor is entitled to absolute and statutory immunity.
- Before the gov't can undertake a forensic search of a smartphone seized at the border, officers must have individualized suspicion of wrongdoing, says the Fourth Circuit. But because that's a new rule, we won't apply it to suppress an 896-page report on the contents of this international arms smuggler's phone. Concurrence: We shouldn't be announcing a new rule. Defendant got caught with contraband in his suitcases, so officers plainly had reasonable suspicion (assuming they even needed it) to keep and search his phone for a month.
- Widow: I am owed benefits under the federal Black Lung Benefits Act. Insurer: Your husband worked as an electrician in an above-ground strip mine, which is not "substantially similar" to working in an underground coal mine; the Act doesn't cover you. Sixth Circuit: The Dep't of Labor says she gets benefits, and we defer to them. Judge Kethledge, concurring: She is owed benefits, but not just because the agency says so. "I see no reason in this case to hand off the judicial power to an executive agency." Judges are capable of figuring out what "substantially similar" means.
- ACLU: Blackford County, Ind. man would like to vote at his neighborhood polling station, a school, but he's barred from entering owing to his 1993 conviction for a sex offense involving a child. Unconstitutional? Seventh Circuit: He can vote at the courthouse, at a civic center, or by absentee ballot. And anyway, Indiana is under no obligation to provide even those options because felons don't have a constitutional right to vote.
- Man convicted of pandering in state and federal court (for the same conduct) serves his state sentence in both state and federal prisons. He gets paroled, but the feds take custody and don't count his previous time (even spent in federal prison) toward his federal sentence. Seventh Circuit: That doesn't sound right. And even though he's since been released, the case isn't moot; a ruling in his favor could mean a shorter term of supervised release.
- Allegation: Maplewood, Mo. officials trap low-income motorists in a repeated cycle of arrests and jailing over traffic violations by requiring them to pay fines and bonds irrespective of their ability to pay. A Fourteenth Amendment violation? The district court did not err, says the Eighth Circuit, in allowing the case to proceed.
- Navy Lieutenant dies of complications from "low-risk" childbirth in Bremerton, Wash. naval hospital. Negligence? We don't like it, says the Ninth Circuit, but the gov't is immune from suit where a service member's injuries are "incident to military service." The Supreme Court should carve out an exception for injuries such as this.
- Maricopa County, Ariz.: We shouldn't be on the hook for the misdeeds of former Sheriff Joe Arpaio (who was convicted—and then pardoned by the President—of criminal contempt for failing to comply with court order to cease pretextual stops of Latino drivers) and the millions of dollars it will cost to comply with court order meant to end discriminatory policing. Ninth Circuit: You are on the hook.
- Legal immigrant convicted of two nonviolent burglaries faces deportation under statute requiring removal for violent crimes. Supreme Court: The statute is unconstitutionally vague; it requires judges to speculate as to whether the average burglary is violent, rather than consider the specific burglaries in the case. Tenth Circuit: In light of that, a separate, identically worded statute that imposes longer prison sentences for using a dangerous device during the commission of a violent crime is also unconstitutional. Defendant's 35-year sentence for firebombing a Las Cruces, N.M. tattoo parlor may be too long.
- Allegation: Over 10 years, Delaware County, Okla. social workers receive at least 17 reports that couple (once named "adoptive parents" of the year by the state) is abusing children. (Both parents take a plea and receive life sentences (though they won't have to serve most of the time).) Can the children sue 18 social workers? For the most part, no, says the Tenth Circuit. But in the several instances where they link an individual social worker to an incident (such as the claim that two social workers tipped off the couple to impending home visits), the suit survives qualified immunity.
- Allegation: Orlando, Fla. man inherits massive trove of keepsakes, correspondence of Simón Bolívar, who helped six South American countries secure independence from Spain. In 2007, Venezuelan officials meet with him in Orlando, take collection back to Venezuela for further inspection, promising to either buy or return it. They do neither; the collection remains in Venezuela. Eleventh Circuit: Venezuela is not entitled to sovereign immunity; the man can sue.
- Boca Raton, Fla. officials adopt new ordinance, approve zoning variances to allow construction of synagogue in neighborhood zoned for single family use. Neighbors: Which violates the Establishment Clause. Eleventh Circuit: Since a state court has killed the project (because the synagogue was to include a museum, which is forbidden), the case is moot.
Lisa and Kevin Howard and Jessica and Chris Hadraba own a cherry orchard and farm store in Gibraltar, Wisconsin, on the picturesque Door Peninsula, a vacation spot that attracts millions of people each year. Last year, the quartet added a food truck to the family business. But soon after, Gibraltar officials forced them to shut down (even though they'd obtained a county zoning permit and state mobile-restaurant license) by passing an ordinance banning all mobile vending. Outrageous! This week, the town board's chairman, who is not coincidentally a restaurant owner, got served with notice that the ordinance violates Wisconsin's constitution—and so the board must repeal the ordinance or face a lawsuit. Click here to learn more.