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.
Big news! This week, the U.S. Supreme Court granted cert in Timbs v. Indiana, which will give the Court occasion to consider whether the Eighth Amendment's protections against excessive fines apply to the states. The Indiana Supreme Court said they didn't and permitted the civil forfeiture of a $40,000 truck (obtained licitly) over $225 worth of illegal drugs. Nick Sibilla has the story. For IJ's cert petition, click here.
- Waikiki, Hawaii hotel workers decline to join union; the union demands they pay full dues anyway, starts process to garnish their wages. Does the union's conduct amount to an unfair labor practice? NLRB: No, the union made an honest mistake. D.C. Circuit: That "makes no sense." The union never apologized or said it made a mistake. Its message to the workers was, "We can do this the easy way, or we can do this the hard way."
- Verizon employee leaves work early, prompting months long investigation, during which employees offered conflicting accounts of whether the employee's departure was authorized. NLRB: All of which was a pretext to fire a union-supporting employee. D.C. Circuit: Nope. Companies can fire employees for being dishonest, and that's all that happened here.
- A federal judge failed to adequately consider a sex offender's "nightmarish" childhood when sentencing him to 25 years in prison for taking illicit photos, says two-thirds of a Second Circuit panel. Remanded a second time, this time to a new judge.
- Allegation: In 2008, NYPD officers and a state prosecutor obtain arrest warrant to bring material witness before a judge. Yikes! They detain the witness for two days and do not bring her before a judge. Second Circuit (2013): The officers and prosecutor are not entitled to absolute immunity. Second Circuit (2018): Nor are they entitled to qualified immunity. There's not a lot of case law on abusive detentions of material witnesses, but this is the rare case where no case on point is necessary; the officers and the prosecutor knew to abide by the terms of the warrant. The witness can sue.
- The presence of transgender students in restrooms and locker rooms at Boyertown, Penn. high school does not violate the constitutional, statutory rights of students who are not transgender, says the Third Circuit. Although plaintiffs have fasted and reduced water intake, their difficulties are not comparable to the harm of forcing transgender students to use facilities that do not match their gender identity. Students who are concerned about their privacy can take advantage of the school's single-occupant facilities for using the restroom, showering, and changing clothes.
- Plaintiffs' counsel dismisses lawsuit alleging that a manufacturer's fire sirens caused hearing damage after discovery reveals that all of the plaintiffs are time barred (oops!) and one of them didn't suffer any damage from the sirens in the first place (double oops!). Third Circuit: Counsel's lackadaisical approach to factual investigation before filing this lawsuit (which is one of more than 1,000 they have filed since 2011) warrants an award of attorneys' fees.
- Honduran and Salvadoran mothers fear violence, cross into U.S. with their young children, are denied asylum. Mothers and children: The way the gov't conducted our "credible fear" interviews is unlawful, unconstitutional. Third Circuit (2016): There's a federal statute that bars us from considering your claims, and you can't argue the statute is unconstitutional. Four children: The feds have since afforded us "special immigrant juvenile" status for abused or abandoned children (and yet are still trying to deport us expeditiously). Third Circuit (2018): Now we can consider your claims. The statute that says otherwise is unconstitutional as applied to these children.
- Fourth Circuit: The multiple life sentences meted out to Lee Boyd Malvo, one of the "D.C. Snipers" who murdered 12 people over the course of seven weeks in 2002, must be vacated and reconsidered in light of intervening Supreme Court decisions restricting life sentences for juvenile offenders.
- Job applicant divulges a 15-year-old nonviolent drug conviction (she says it was her roommate's drugs, and she's never had trouble since) to Prince George County, Va. school officials; they hire her to be budget director, a position that entails no direct contact with children. Oh no! Turns out the conviction disqualifies her; she's fired. Local news runs a story that (though it doesn't name her) implies she may have lied about her criminal history in her application. Defamation? The Fourth Circuit says nope, she's a "public official," and she didn't prove the local news acted with "actual malice."
- Police receive two calls that a white male with a blue and white shirt is drunk at a Newport News, Va. pool hall and carrying a gun. Police: We did a pat-down of the one guy who matched the description, found a gun, and arrested him. Defendant, an ex-convict: Cops didn't have reasonable suspicion that I unlawfully had a gun on me. District Court: A sole white person (with a gun) in a setting where most people are black is suspicious, especially in light of the recent Charleston church shooting. Fourth Circuit: The "mere fact that a person of one race is present among a group that is predominantly of another race does not provide a basis of suspicion of criminal activity." But police had reasonable suspicion; no need to suppress the evidence.
- Veterans who served in Iraq and Afghanistan allege exposure to smoke from open-air burn pits where military contractor disposed of waste, including batteries and tires, caused serious, sometimes fatal, illnesses. Further, the contractor supplied harmful, insufficiently potable drinking water. Fourth Circuit: Can't sue the contractor over that. The record, developed by means of a "herculean" discovery process, shows the military had control over the contractor's operations, and we can't second-guess the military's decisions in a war zone.
- Judge Willett of the Fifth Circuit puts things bluntly in this opinion about a marijuana conspiracy. In a separate case, Judge Willett cites the Notorious B.I.G. for the proposition that "in bankruptcy litigation, as in life, 'the more money we come across, the more problems we see.'"
- Former convict feels he needs to carry a gun in the Denver neighborhood where he grew up: Whenever he visits, people keep shooting at him (two of his friends were killed in front of him, and he got shot in the leg). District Court: As a felon, it's unlawful for you to carry a gun, even if you feel unsafe. You should stop going home, but since you won't stay away, and it endangers bystanders when people shoot at you, you get an above-guidelines five-year sentence for being a felon in possession of a gun (for third time in seven years). Tenth Circuit: Affirmed.
- Crime scene photo shows robber's arm is covered in tattoos; Birmingham, Ala. officer arrests man with only one tattoo. (He's released the next day.) Eleventh Circuit: No qualified immunity. The man can sue the officer for unlawful arrest.
- Georgia inmate alleges a corrections officer physically and sexually assaulted him. Federal jury agrees, awards him $200k. Inmate then moves to have the court order Georgia to garnish the officer's wages to pay the judgment. Eleventh Circuit: Not so fast. Sovereign immunity means a state can't be sued unless the state waived immunity or Congress abrogated immunity. Georgia hasn't waived its immunity for garnishment suits, so the inmate is out of luck in federal court. Try state court.
- CFPB (or BCFP?) and NY Attorney General: Companies that offered cash payments to litigants (September 11 victims and former NFL players with brain injuries) waiting for payouts from settlement agreements were in fact offering usurious loans (under NY law) and engaging in deceptive and abusive tactics (under federal law). District court: I'm kicking the CFPB out of the case because the CFPB's structure (a single director, who does not serve at the pleasure of the president, rather than a board) is unconstitutional; the entire CFPB section should be stricken from the Dodd-Frank Act. The company isn't off the hook, though; New York can pursue its claims. (The decision creates a split with the D.C. Circuit, which upheld the CFPB structure in January.)
- And in en banc news, the Sixth Circuit will reconsider its holding that Ohio may not prohibit the state's health dep't from offering federal health funds (unrelated to abortion) to any organization that provides or promotes abortion. (Ohio might need a new lawyer to argue the case, though: The Ohio Solicitor General has since been nominated for a judgeship on the Sixth Circuit.)
Dallas officials envision a Starbucks or Macaroni Grill where Hinga Mbogo's auto repair shop thrived for 30 years. But rather than offer to buy the property, officials rezoned it and ordered him to move his business elsewhere. (Other repair shops shut down years ago and have since become vacant, trash-strewn lots.) Over 92,000 people signed a petition urging City Council members to let Hinga stay, but instead the Council sued him, seeking over $300,000 in fines. In 2016, Hinga countersued, arguing the Texas Constitution forbids retroactive civil legislation. This week, a state appeals court sided with Dallas, holding Hinga's interest in running an auto shop is not "firmly vested." To the Texas Supreme Court! Read more here.