The Volokh Conspiracy

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

Volokh Conspiracy

Short Circuit: A roundup of recent federal court decisions

Queen Anne's Revenge, Cindy Lou Who, and a pile of deference.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This month marks the 150th anniversary of the ratification of the 14th Amendment, which is a super big deal. Sheldon Gilbert, the director of IJ's Center for Judicial Engagement, explains why in USA Today.

Also of note: This week IJ signed on to an amicus brief urging the Supreme Court to reconsider the doctrine of qualified immunity. Submitted by appellate litigator extraordinaire (and past podcast guest) Cate Stetson on behalf of no fewer than 15 groups (of widely varying ideological orientations), the brief argues that QI prevents victims of unconstitutional conduct from obtaining justice and harms law enforcement by undermining the public trust necessary for officers to do their jobs. Click here to read it.

  • In 1935, Germany's Nazi government strong-armed Jewish art dealers into surrendering the Welfenschatz, a large collection of medieval relics and devotional art. Can the heirs of those art dealers bring suit in America to recover the art (conservatively valued at $250,000,000). D.C. Circuit: They can't sue Germany itself, but they can sue the museum that houses the art.
  • The Federal Energy Regulatory Commission approves natural gas pipelines. It's also statutorily required to recover its costs from regulated industries. Does this create an improper incentive to approve new pipelines, as environmental group claims? D.C. Circuit: FERC no!
  • A news editor submits a Freedom of Information Act request to the CIA, seeking documents he believes will shed light on the assassination of JFK. After 15 years of litigation and four trips to the D.C. Circuit, is he entitled to recover attorney's fees? D.C. Circuit: The district court said no, and we'll review that with "deference piled on deference," so no. Dissent: "In my view, my colleagues pile their deference far too high."
  • Boston union representing hotel and food service workers has collective bargaining agreements with multiple employers; a union member asks to see agreements with employers other than her own. Union: Nope. Feds: Let her see them. Union: Okay, she can read them, but she can't take notes or have copies of them. Retired Justice Souter, pinch-hitting at the First Circuit: Which is what Congress intended.
  • A one-woman play that imagines a grownup, comically dissolute Cindy Lou Who, of Dr. Seuss' How the Grinch Stole Christmas!, does so in the service of parody, says the Second Circuit. So the public's interest in free expression trumps the asserted copyright and trademark violation claims, and the show must go on.
  • Bronx, N.Y. man dishonorably discharged from the military, and thus banned from possessing guns or ammunition, is found with one round; he's sentenced to three years of supervised release. Does the ban violate the Second Amendment? The Second Circuit says no.
  • Man arrested after fight outside Winslow Township, N.J. bar is released pretrial but barred from leaving home except for work. Man: A recent New Jersey law that did away with money bail in most circumstances is unconstitutional. I have a constitutional right to pay money to a bail bondsman or insurance company and be released pretrial without this ankle bracelet. Third Circuit: Doubtful. Also, an insurance company that will lose money because of the law does not have standing to challenge it.
  • Allegation: TSA screeners falsely accuse woman of assault. She gets hit with lots of charges, spends 18 hours in Philadelphia jail, is ultimately acquitted. Can she sue the screeners? No can do, says two-thirds of a Third Circuit panel. TSA screeners are not "law enforcement officers" but "employees," and Congress has not waived sovereign immunity for employees accused of committing intentional torts, like fabricating criminal charges.
  • Videographer obtains the rights to film Queen Anne's Revenge, Blackbeard's 40-cannon flagship that ran aground near Beaufort, N.C. in 1718. State officials then make his videos publicly available. Videographer: Which violated my copyrights. (The parties settle, but the state allegedly reneges, puts the videos back online.) State officials: No matter, we'll just pass this new law declaring that footage of shipwrecks is public property. Fourth Circuit: The videographer can't sue. Federal copyright law doesn't waive the state's immunity to suit, and the state officials have qualified immunity.
  • Allegation: Man hits his wife, flees from Grand Prairie, Tex. police. On hearing canine approach, the man drops pocket knife, lies down spread-eagle. The dog bites him for one minute (until he's cuffed), during which time he cries out in pain, and the officers laugh. District court: Qualified immunity for the initial bite, but a jury might think the prolonged chewing (which tore muscle from bone, caused infection that required four surgeries) was unlawful. Fifth Circuit: Nope. That was fine, too. The man's mother told police he'd rather die than surrender, so the police reasonably feared for their safety.
  • Allegation: Decorated Iraq war vet suffers mental health crisis, enters woman's apartment, apparently thinking it's his own, at 5 a.m., carrying large knife. He leaves without harming her, tries to get back in. Columbus, Ohio police confront him outside, shoot at him; he flees; they give chase, shoot him dead. Sixth Circuit: Qualified immunity. Judge Stranch, partially dissenting: A jury might think shooting him again, after he'd collapsed on the ground, and then failing to render aid (other than calling EMTs, who arrived after his death) is unlawful. And while we're on the topic of qualified immunity, "I think we have embarked on the wrong road and the place to which it leads will prove detrimental to law enforcement, those with mental health issues, and our society as a whole."
  • Allegation: Ohio judge made vulgar remarks about female lawyer's sex life, retaliated against a court staffer who reported the remarks. District court: The staffer can sue the judge. Let's go to trial. Sixth Circuit: We don't have jurisdiction over the appeal because the judge's qualified immunity argument questions factual inferences drawn by the district court. Dissent from Judge Sutton: This is not what the Supreme Court meant when it held appeals courts lack jurisdiction over factual disputes in qualified immunity cases; it meant that defendants can't just say the plaintiff is lying.
  • Allegation: Wisconsin prison officials dither, delay, ultimately decline to provide hormone therapy to transgender inmate. After her release, parole officers forbid her from seeking such treatment or dressing as a woman. Seventh Circuit: Her claims against a prison doc and parole officers should not have been dismissed.
  • Allegation: Illinois inmate serving life sentence is confined alone 23 to 24 hours a day in dark, noisy, insect-infested cell that is cold in winter and hot in summer—for 11 years. Inmate: I'm suicidal. This is unconstitutional. District court: You've already filed three frivolous suits. We'll not appoint you a lawyer for this one. Seventh Circuit: Get him a lawyer anyway (though in point of fact he only has two strikes).
  • Indianapolis police investigate cop for stalking, rape, battery of his ex-wife (also a cop). The cop suspects there is a GPS tracker on his car, and a friend of his (another cop) confirms it. Ten days later, the cop drives to ex-wife's house in another car and kills her, himself. The ex-wife's estate unsuccessfully sues the city and the cop's friend. Seventh Circuit (over a dissent): The city doesn't have to pay the friend's legal bills.
  • Man takes hostages at Neenah, Wisc. motorcycle shop. Police enter, exchange gunfire, retreat. A hostage, the shop's co-owner, escapes out the back. The man fires at him; the co-owner takes cover, pulls out his own gun. Police shoot the co-owner dead. Can the co-owner's widow sue the officers? The Seventh Circuit says no. (Side note: The co-owner was suing police for a prior SWAT raid on the shop (an unsuccessful effort to find a large-scale drug operation), which was signed off on by a judge whose brother was on the task force that conducted the raid.)
  • In Illinois, sex offenders are prohibited from living within 500 feet of places—like playgrounds—where children regularly go. When the state added in-home day cares to the list of prohibited places, Chicago police ordered two sex offenders to move out of their homes within 30 days because one owned a home (where he had lived for 25 years) 475 feet from a day care and the other rented an apartment 480 feet from one. Can the sex offenders challenge the law as unconstitutionally retroactive and a taking of their property without compensation? No, says the Seventh Circuit, the complaint doesn't even state a claim.
  • Eighth Circuit: No need to reconsider $2.5 mil jury award to be paid by two St. Louis cops who framed man on drug, gun charges. (Click here for the man's profile on The National Registry of Exonerations.)
  • Arkansas state cop searches bag stowed in commercial bus's luggage compartment because it lacks a name tag, which is suspicious. But wait! The bag has a name tag. District court: The officer lacked probable cause, reasonable suspicion, and consent; the search violated the Fourth Amendment. But no need to suppress the evidence. A drug doggie's subsequent alert on the bus's luggage compartment (not on any particular bag) rendered sufficient probable cause (untainted by the previous search) to search the bag, which contained contraband. Eighth Circuit (over a dissent): Affirmed.
  • The feds spend two years investigating fowl murder, accuse Parma, Idaho farmer of leaving corn unharvested, spreading kernels about his field, which he then flooded, to attract ducks. A gov't witness says state officials even hunted there. Ninth Circuit: Conviction for illegal duck-baiting affirmed. (So 15 days in jail and a $40k fine.)
  • Among other misdeeds, Las Vegas softball coach takes explicit photos of himself with 17-year-old player. Distribution of child porn? Coach: No, I never shared the photos with anyone other than the player. Ninth Circuit: That's still distribution. But it seems the district court increased your sentence because you opted for a trial, so (over a dissent) resentencing is in order.
  • Allegation: Transgender inmate gets hormone therapy in Kansas prison but needs greater doses, gender affirming surgery. Can she sue prison officials for deliberate indifference to her serious medical needs? The Tenth Circuit says no.
  • Pima County, Ariz. police seize $120k from Florida man during traffic stop. He returns home and files claim for the money; he says he can't afford to travel back for deposition. Arizona trial court: Come back in person. No depositions via telephone or videoconferencing. Man: I couldn't do that (or comply with some other discovery requirements). Arizona appeals court: So you lose.

Friends, a startup called Vizaline provides a useful new service to small community banks in Mississippi. It uses publicly available legal descriptions of property to draw lines on satellite photos so that banks can visualize their property assets and identify issues that need to be looked into by a lawyer or assessor. (For instance, if a property's legal description doesn't describe a completed shape.) But the Mississippi Board of Licensure for Professional Engineers and Surveyors has sued to shut down Vizaline and require it to return all its earnings to satisfied customers because it says the startup is engaged in "unlicensed surveying." This week, IJ and Vizaline countersued. Drawing lines on maps is not surveying, and Vizaline has a First Amendment right to use existing information to create new information to sell to willing customers. Click here to learn more.