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.
After a Texas administrative agency ruled that a home health aide had committed misconduct (thus forbidding her from ever working in the field again), officials told her (and regulations directed her) to appeal by contesting the ruling in court. But when she did, officials argued the suit was barred (and all judicial review foreclosed) because she hadn't first sought rehearing within the agency—and a state appeals court agreed! Today, IJ urged the Texas Supreme Court to grant review and hold that due process provisions of the U.S. and Texas Constitutions do not allow gov't to actively lie to citizens about procedures designed to protect their rights. Click here to read more.
- Federal law gives Amtrak the power to establish rules for use of tracks owned by freight railroads. D.C. Circuit (2016): Due process is violated when Amtrak—a for-profit outfit—sets regulations that affect its own bottom line. D.C. Circuit (2018, with puns): But no need to actually invalidate the law. We can remedy the violation with a minor tweak. Dissent: That leaves Amtrak's ability to impose self-serving regulations intact; the entire law should go. (We discussed the 2016 decision on the podcast.)
- Citizen: I renounce my U.S. citizenship. Gov't: You're kidding. You're not a citizen anywhere else, and you have nowhere to go. Citizen: I really mean it. Gov't: You can't be serious. We would have to detain you. Citizen: I understand, but I really do mean it. Gov't: No you don't. D.C. Circuit: Problematic as it may be for all involved, this gentleman clearly does intend to renounce his citizenship.
- Protesters protest money in politics across the street from NYC hotel where President Obama is holding 2011 fundraiser. NYPD officers put up barricades, boxing them in for two hours. (Two require medical attention.) An unconstitutional detention? Probably, but officers couldn't have been expected to know that, says the Second Circuit.
- State police conduct pre-dawn raid of Galen, N.Y. home with Border Patrol agents present to provide "translation assistance." Second Circuit: It's fishy the gov't didn't produce a copy of the warrant justifying the raid. Could be that the officers, rather than seeking a fugitive, were just rounding up Hispanics to check their immigration statuses. Certainly merits an evidentiary hearing.
- Man gets life sentence for 2006 killing of Harrisburg, Pa. gas station clerk. Yikes! The jury never heard that, among other things, details of his purported confession are contradicted by video. New trial? District court: Nope. For that, he would need new evidence, and all his evidence was available (if unpresented) at trial. Third Circuit: Because his lawyer may have been ineffective, new proceeding. Judge McKee, concurring: Evidence of innocence is substantial; "for some inexplicable reason, police simply refused to follow even the most obvious leads that did not confirm their suspicion that [petitioner] was the killer."
- Catholic nuns sue to challenge use of their property for a natural gas pipeline. Third Circuit: The nuns had to challenge the pipeline during an earlier administrative proceeding before the Federal Energy Regulatory Commission, even though the nuns were not a party to that proceeding. Now that their property is at risk, it is too late to raise this claim.
- Fairfax, Va. bank employee convicted of reaping $231k through fraud scheme is ordered to forfeit over $1.5 mil, including assets the gov't stipulates were not fraudulently obtained. Fourth Circuit (2017): Freezing her assets prior to trial doesn't violate the Sixth Amendment; she may have had to go heavily into debt, but she retained her counsel of choice. Fourth Circuit (2018, on remand from SCOTUS): But she's not liable for the full $1.5 mil; no more forfeiting untainted assets.
- Mocksville, N.C. police officers anonymously report their chief to state authorities for embezzlement, pulling people over without authority. (He's an "administrative" chief and not certified to do traffic stops.) State officials send an investigator friendly with the chief; the officers get unmasked, promptly fired. Fourth Circuit (2015): No qualified immunity. Could be the chief is liable for violating the First Amendment. Jury: He totally is. Fourth Circuit (2018): Point of fact, the town is also liable for violating the First Amendment.
- Property owners say the condemnation of their property to build a pipeline violates the Constitution. But the statute says such claims can be pressed only in the D.C. Circuit and that, says the Fourth Circuit, is not here.
- The Fifth Circuit has repeatedly told prosecutors to refrain from improper conduct, such as implying that the court has already determined that a witness for the prosecution is truthful. Yet these prosecutors did it again! Fifth Circuit: For which there will, again, be no consequences beyond a stern finger-wagging, which we hope will teach them a lesson. Conviction (and 30-year sentence) affirmed.
- Drunken mixed martial artist taps woman on her posterior with the back of his hand "to say hi." What follows includes a Grand Rapids, Mich. cop being thrown through the air by a "spin move," alleged choking, and so, so much self-defecation. Sixth Circuit: Qualified immunity for everybody.
- "Women, like all humans, are intellectual creatures with the ability to reason, consider, ponder, and challenge their own ideas and those of others." So says the Seventh Circuit, blocking, for now, an Indiana law requiring women to view a transvaginal ultrasound and listen to a fetal heartbeat (unless they sign a state form certifying they don't want to) at least 18 hours before getting an abortion.
- Legal immigrant drinks and drives with his young son in the car. Feds: That's child abuse, as we interpret the relevant statute, even if no harm came to the boy. So you're deported. Ninth Circuit: The feds' interpretation is entitled to Chevron deference. Dissent: The new interpretation of the law means conduct driven by poverty (like leaving a child home alone to run an errand) can get you deported. Fault the guy for endangering his son, but breaking a family apart is not what Congress intended here.
- Ninth Circuit (2016, en banc): The Second Amendment does not prevent cities or states from barring people from carrying concealed firearms in public. Ninth Circuit (2018, over a dissent): But the Second Amendment does prevent Hawaii County, Hawaii, from banning people from openly carrying handguns. (We discussed the 2016 decision on the podcast.)
- Nevada judge presides over 1990 murder trial where victim was an FBI agent who had investigated the judge for corruption, perjury (before he became a judge)—a fact known to the judge and not disclosed to the defense. The judge denies a motion to suppress the defendant's confession (allegedly obtained via gruesome torture at the hands of Mexican police); the defendant is convicted, sentenced to death. Ninth Circuit: New trial.
- The Supreme Court has signed off on prayers before legislative sessions, but does this extend to prayers before school board meetings at which students are present? Ninth Circuit: Nope, this is more like prayer at high school football games, which the Supreme Court has not signed off on.
- The Maricopa County Sheriff's Office, under the leadership of Joe Arpaio, violated the Fourth Amendment when it raided the home of a businessman who leased (allegedly undocumented) employees to two restaurants. But was it such an "egregious" violation that evidence should be suppressed in a separate ICE proceeding? Ninth Circuit: Indeed it was. Suppress the evidence.
- Pro tip from the Tenth Circuit: Attorneys should tell the court if their clients die.
- In 2016, Birmingham, Ala. officials imposed $10.10 minimum wage, but the next day state legislators preempted it, enacting a statewide minimum wage of $7.25. Plaintiffs: Which discriminates against blacks, who make up 72 percent of Birmingham and most of its City Council. Eleventh Circuit: "Today, racism is no longer pledged from the portico of the capitol or exclaimed from the floor of the constitutional convention; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends." Plaintiffs' equal protection claim should not have been dismissed.
- And in en banc news, the Third Circuit denied rehearing and issued a revised opinion that permits a Boyertown, Penn. high school to continue allowing transgender students to use bathrooms and locker rooms consistent with their gender identity. Dissenting from denial of en banc review: The school probably wins here because the policy doesn't violate anyone's privacy, but the panel shouldn't have addressed the school's superfluous claim that Title IX requires the policy.
- And in further en banc news, the Fifth Circuit, by a vote of 8–7, will not reconsider its decision upholding a federal statute that bars handgun dealers from selling directly to customers who reside out of state, lest dealers be expected to learn and comply with 50-plus other jurisdictions' gun laws. With dissents that invoke Rodney Dangerfield, hoplophobia, and the liberty of the individual.
- Allegation: Cecil County, Md. officer pulls over woman with dwarfism, who stands 4'6″, simply for making eye contact; he's enraged when she declines to roll down her window the whole way. Thinking he's about to break her window, she drives slowly to a well-lit area, but another officer cuts her off. They drag her out of the car and throw her on the pavement, breaking her arm. A search yields no contraband. (She's convicted in state court of "obstructing and hindering.") District court: A jury might think the officers acted with malice or gross negligence.
Jon McGlothian is a former Army Ranger with decades of experience managing projects in the business world. And for years he's also taught project management courses to clients ranging from Fortune 750 companies to military units. But Virginia forbids him from teaching the very same material directly to individuals without first obtaining a vocational school license, and State Council of Higher Education for Virginia officials have repeatedly denied him one—for no defensible reason. This week, Jon, his wife, Tracy, and IJ sued the state. The First Amendment ensures that the public, not the gov't, gets to decide who is worth listening to and learning from. Click here for more.