The Volokh Conspiracy

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

Volokh Conspiracy

Short Circuit: A Roundup of Recent Federal Court Decisions

Dinosaur mortal combat, the hose treatment, and the great high school impostor.


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

IJ was at the Florida Supreme Court this week arguing that a pair of programs, a scholarship for disabled students and a tuition tax credit, that allow 140,000 students to attend the school of their family's choice are constitutionally sound. Click here to read IJ Attorney Ari Bargil argue in the pages of the Orlando Sentinel that they are also wise policy.

  • Ship owner and operator are acquitted of dumping oil in the sea. (The ship's engineer gets convicted.) Did the feds unreasonably impound the ship (setting too high a bond for its release) during trial, thus requiring compensation for the owner? D.C. Circuit: Ooh, neat. Congress created this cause of action 40 years ago, but no one's ever tried to use it before. So, "sailing into uncharted waters," the feds win.
  • In Boston, people who want to carry a firearm for self-defense have to prove they have a "good reason" for doing so "beyond a generalized desire to be safe." A Second Amendment violation? First Circuit: The right to armed self-defense is focused on protection of hearth and home. The right to carry outside the home gets only intermediate scrutiny, which this law satisfies.
  • Second Circuit: There's having a close relationship with your dad, and then there's having such a close relationship that you give him insider-trading information. Luckily for this guy, he gets a new trial because he was wrongfully prevented from impeaching statements by his blabbermouth of a dad.
  • Allegation: Man's soon-to-be ex-wife and her Glens Falls, N.Y. cop boyfriend fabricated claims of abuse and other wrongdoing against him; he's arrested and charged with various crimes. Can he sue for malicious prosecution? He cannot, says the Second Circuit. His complaint failed to plead that the charges were dismissed in a way that affirmatively indicated his innocence, which is a necessary element of any federal malicious prosecution claim.
  • College-age Ukrainian exchange student overstays his visa, enrolls as freshman at Harrisburg, Penn. high school. He keeps up the charade into senior year, earning academic honors and praise from the mayor. He also dates a girl seven years his junior. He's caught, incarcerated, deported. Third Circuit: There's no reason to reduce five-month sentence for American woman who "adopted" him, reaping inappropriate Social Security payout, tax benefits. (Click here for some longform journalism.)
  • Woman fails to pay traffic ticket, is arrested for driving on a suspended license. She's strip searched in front of other detainees and gets "the hose treatment" (delousing) at Cleveland jail. Sixth Circuit (2014): Which is dehumanizing and perhaps a Fourth Amendment violation. This case should go to trial. Sixth Circuit (2018, over a dissent): Group strip searches expedite the intake process, which is good, and lice are bad, so this is all fine. (The jail has since been closed, and compulsory delousing halted.)
  • Allegation: Burglary suspect hides from Nashville police in basement of abandoned home. They order him to reveal himself; he remains quiet. They discover him; he raises his hands to surrender; they release dog, which bites him. Excessive force? District court: No qualified immunity. Sixth Circuit: Reversed. It's not clearly established that setting a police dog on a suspect in these circumstances is unlawful. (Nor is it now clearly established.)
  • Allegation: Truck driver declines to pay cash bribe solicited by Merrillville, Ind. officer in exchange for voiding parking ticket; instead, the driver takes photos documenting absence of nearby no-parking signs. The officer slaps the phone out of his hand, takes him to ground. The driver gets the better of the ensuing struggle, but he gets up and backs away with his hands raised, saying "I surrender." The officer unholsters his gun and shoots the driver in the stomach. (The driver lives, gets convicted of felony battery on an officer). Seventh Circuit: The driver can sue the officer for excessive force.
  • DEA agents conduct traffic stop, search car, find contraband and also garage-door openers, key fob, and mail key. An agent drives around Chicago, pressing garage-door openers. A garage door opens! The agent uses key fob to get into building lobby, mail key to identify condo unit, and then gets consent to search condo, finds trove of heroin, cocaine, ecstasy, pot, and meth. Every one of those investigatory steps comported with the Fourth Amendment, says Seventh Circuit. Concurrence: Agreed, but this is "near the outer limits of what the Fourth Amendment tolerates."
  • A sad case: Carjacker carjacks car, causes accident that kills dog in the back seat of the carjacked car. The carjacker gets 12 years. The carjacking victim seeks $15k restitution for the loss of the dog; the district court orders the carjacker to pay $1k. Eighth Circuit (over a dissent): The restitution award should have been based on what it cost to replace the dog, and there's no evidence that it was as much as $1k. Reversed.
  • In 2012, the Obama administration established the DACA program via executive memorandum, deferring deportation of productive, law-abiding immigrants who were brought to the country illegally as children. Trump administration: The executive branch lacks authority to impose such a program without the go ahead from Congress. Ninth Circuit: Revoking the policy probably violated the Administrative Procedures Act. No revocation for the 689,800 enrollees while this litigation proceeds.
  • Two dinosaurs (a theropod and ceratopsian) fight, die some 66 million years ago in what is now Garfield County, Mont. Their fossils, still intertwined, are now extremely valuable. But do they belong to the surface-estate landowner or to party that owns the rights to mine minerals on the land? To the mineral rights owner, says the Ninth Circuit; fossils are minerals under Montana law. Judge Murguia, dissenting: Fossils are indeed organic matter that become a mineral compound over time, but they are not mined, they are not typically extracted for economic purpose, and they just aren't minerals as the term is ordinarily understood. (Click here for the Smithsonian's take on whether the public will ever get to see the dueling dinos.)
  • Under Tennessee law, PACs controlled by a political party can make contributions to candidates within 10 days of an election, but other PACs cannot. An unconstitutional speech restriction? Tennessee trial court: Indeed so. The gov't tried to conduct a "trial by ambush," waiting until oral argument to say they hadn't had enough time to gather evidence to defend the law. (Click here for a local news report on the ruling.)
  • Man is arrested after (he alleges) ex-girlfriend falsely told police he'd attacked her. Case dropped after ex-girlfriend thrice fails to show up for hearing. Man sues the Philadelphia District Attorney's Office (among others). But, says district court, to sue the DA you need to show that they had a "custom or policy" leading to your injury, and you haven't done that. But if the man can identify the detectives who actually arrested him, maybe the case can proceed against them.

Are you a uniquely passionate, persuasive, inspiring, and entrepreneurial attorney with a deep understanding of judicial engagement? The Institute for Justice is looking for a new director of the Center for Judicial Engagement. The ideal candidate will be an excellent writer and public speaker with a demonstrated commitment to individual liberty and limited government. Apply today.