The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Sovereign immunity, absolute immunity, qualified immunity, and the agora of the digital age.


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

Ohio's licensing boards may soon be in for an existential crisis. A sweeping reform signed last week by Gov. John Kasich will require all state boards to prove a "public need for [their] continued existence," lest they expire. And to stem the growth of licensing red tape (which already covers almost a fifth of the state's workforce), a commission will rigorously review any proposed occupational regulations to ensure they're necessary and the "least restrictive" option to protect the public. IJ's Nick Sibilla has more at

  • Unnamed corporation owned by an unnamed foreign gov't declines to comply with a federal grand jury subpoena (in what is believed to be the Mueller investigation of Russian interference in the 2016 presidential election). District court: So pay a $50k daily fine. Corporation: Can't make us; we're immune under the Foreign Sovereign Immunities Act. D.C. Circuit: Assuming without deciding that the Act applies to criminal cases, you still gotta comply or fork over the money. (SCOTUS: The corporation's application for a stay is denied.)
  • Last March, the FAA ordered an airplane maintenance company to cease its operations. The D.C. Circuit was set to consider the matter today. But wait! The gov't is shut down, and the Antideficiency Act generally prohibits gov't employees from working without an appropriation. FAA: Please postpone until we get funded. D.C. Circuit: No dice. Concurrence: Common practice is to continue with oral argument during shutdowns, so we'll do that. Dissent: Charles Dickens addressed this approach ("'Whatever is is right'; an aphorism that would be as final as it is lazy, did it not include the troublesome consequence, that nothing that ever was, was wrong."). The law is clear; we should postpone until there's an appropriation.
  • Allegation: Identity thief is captured on video buying gift cards ($28k total) at Home Depots in three Monroe County, N.Y. towns. Police arrest a different man who'd made small purchases at Home Depots in two of the towns around the same time. Prosecutors arraign the man in only one of the towns; a bail bondsman refuses to bond the man out lest he immediately be rearrested on the charges in the other towns. He ultimately spends 28 days in jail (and misses sitting for the bar exam). He's acquitted of all charges. Second Circuit: He can't sue the prosecutors for failing to arraign him in the other towns. (His false arrest and other claims against police are still proceeding below.)
  • Dignifying millennials and trolls alike, the Fourth Circuit sees Facebook as the agora of the digital age. Which means a Loudoun County, Va. supervisor violated the First Amendment when she banned a critic (alleging school board corruption) from her public Facebook page. The page's interactive aspects constituted a public forum.
  • Allegation: Inmate at Roanoke, Va. prison trips. Officers who were escorting him (handcuffed and in leg irons) pull his hair and slam his head into the concrete. Prison admin: No need to check the video. The officers say that's not what happened. District court: The inmate filed suit too late. Case dismissed. Fourth Circuit: Not so. The statute of limitations started running when the inmate exhausted the prison's internal review process. If it had started running at the time of the alleged beating (as the district court found), prison officials would have had a perverse incentive to stall their internal reviews.
  • Federal employee with bulging discs, other medical conditions requests several workplace accommodations, all of which are granted except request not to inform his supervisor of his work schedule. He sues. Failure to accommodate? Hostile work environment? Discrimination? Retaliation? The suit should not have been dismissed, says the Fourth Circuit. It was not in fact filed too early.
  • North Charleston, S.C. officer shoots unarmed motorist, who was fleeing on foot, in the back, killing him. Footage of the shooting goes viral. The officer, admitting he acted willfully and unreasonably, pleads guilty to depriving the deceased of his civil rights. Fourth Circuit: And that amounts to second-degree murder. Twenty-year sentence affirmed.
  • Allegation: In 2009, Mexican citizen illegally in U.S. tells authorities that her ex, the father of two of her children and a drug cartel member, has threatened to kill her. She weeps; CBP agents coerce her into signing a form requesting voluntary return to Mexico. She's driven back to Mexico, where her ex murders her days later. Fifth Circuit: Can't sue over that.
  • Man contacts FBI, alleges that Washington Parish, La. district attorney is engaged in shady tax dealings with a pastor. Yikes! The man is arrested for failure to pay child support and denied bail because of "DA Hold." He spends 100 days in jail. He sues the (now-former, now-convicted) DA and the pastor, alleging false imprisonment, First Amendment retaliation, and due process violations. Fifth Circuit: And those claims should have been allowed to proceed, not least because the "mysterious and unheard-of 'DA Hold'" is not a thing.
  • Flint, Mich. officials (with state officials' approval) switch city's municipal water source in 2014 to save money, unleash public health disaster. Plaintiffs: And violated our right to bodily integrity. Officials: We get sovereign immunity, which doesn't normally apply to cities, but our day-to-day operations had been taken over by the state, thus transforming the city into an arm of the state. Sixth Circuit: Nope. But some defendants get qualified immunity. Partial dissent: No court has ever recognized a Fourteenth Amendment right to bodily integrity. Everyone should get qualified immunity.
  • In other police shooting news, the Seventh Circuit affirmed the conviction of a Chicago police officer who shot 16 times at a car full of teenagers. This one was caught on video, too. (Thankfully, no one died.)
  • Peoria, Ill. police arrest a 14-year-old for a double murder. He's tried as an adult and convicted, spends 30 years in prison. He's paroled; the governor commutes the rest of his sentence (leaving the conviction intact) and later pardons him (sweeping the conviction from the books). He sues the city and several officers, alleging that, among other unsavory things, they fabricated evidence, destroyed evidence, and coerced a false confession during 31 hours of interrogation over two days. District court: Too late. The suit should've been brought within two years of the commutation. Seventh Circuit: No, the clock started when he was pardoned. The suit may proceed. (See his page on the National Registry of Exonerations for more.)
  • Allegation: Ferguson, Mo. officials arrest people who are unable to pay fines for minor offenses and keep them in crowded, unsanitary jail indefinitely—until friends or family scrape together the cash. Ferguson officials: We get sovereign immunity, which usually only applies to state officials, but the injuries alleged (except for the jail conditions) are attributable to the local court, which is an arm of the state. Eighth Circuit: The suit can proceed.
  • Unlawful alien, caught possessing a firearm, is charged with violating a federal law that categorically bars unlawful aliens from possessing firearms. Defense: That law violates the Second Amendment. Ninth Circuit: We're not sure whether the Second Amendment applies to unlawful aliens in the first place, but even if it does, this law passes muster. It's sufficiently tailored to the government's crime-control interests since unlawful aliens are subject to removal, are often hard to trace, and "have already shown they are unable or unwilling to conform their conduct to the laws of this country."
  • Social services removes two boys from Pierce County, Wash. home they share with their father and grandfather after authorities discover grandfather's trove of child porn. The boys are moved to their maternal grandparents' home and permitted to visit their father, who is the lead suspect in the disappearance of the boys' mother, under the supervision of a social worker. On their final visit, the boys run ahead of the social worker to greet their father; he locks the social worker out, murders the boys, sets the house on fire, and kills himself. Ninth Circuit: Could be the dep't of social services was negligent.
  • Woman uses false ID to purchase firearm for her ex, who's on the run from police in connection with a Phoenix, Ariz. double homicide. She's convicted, sentenced to 30 months in prison. Ninth Circuit (over a dissent): New trial. She should have been allowed to present expert testimony on Battered Woman Syndrome.
  • If "the overriding mission" of your religion is "the achievement of White racial immortality"—well, the Tenth Circuit might decide it's not a religion at all. And that's the end of those free-exercise claims. Turns out courts aren't sympathetic when you challenge the conditions of the maximum security prison sentence you got for trying to murder a federal judge.
  • Greene County, Ga. patrolman pulls over a car for a turn signal that is blinking too rapidly. He then asks about unrelated matters (e.g., "You don't have any dead bodies in your car?"). The driver consents to a search of the car, which yields a firearm (which the motorist, a convicted felon, cannot possess). Eleventh Circuit: The initial stop was reasonable, but per a 2015 U.S. Supreme Court decision, prolonging the stop by asking unrelated questions was not. Nevertheless, the good faith exception to the exclusionary rule applies because the driver was pulled over in 2013. No need to suppress the evidence.
  • New Jersey law authorizes local gov'ts to adopt redevelopment plans, condemn property that is "necessary" for redevelopment. Glassboro, N.J. officials seek to condemn a parcel, but instead of detailing how the land is necessary to its redevelopment project, the borough says only that it wants to stockpile the parcel for possible future redevelopment. Not so fast, says the New Jersey Appellate Division. "Such a 'take first, decide later' approach is contrary to both the text of the statute and its public accountability objectives." (IJ participated in oral argument and as amicus curiae.
  • Vermont state trooper pulls over motorist for partially obscured registration sticker on his license plate, which is not actually an infraction. The trooper detects faint smell of burnt marijuana, but a pat-down yields no contraband, and the trooper determines the motorist is unimpaired. The motorist declines permission for a search of his vehicle, so it is towed to an impound lot while search warrant is secured. The search yields no contraband, but the motorist must pay $150 to retrieve the vehicle. (The search does turn up a small pipe with marijuana residue, but that's not criminal in Vermont these days.) Vermont trial court: Tough luck, motorist; the statutes are inapplicable to this situation, so you have no judicial remedy. Vermont Supreme Court: The Vermont Constitution provides an avenue for the motorist to obtain damages from the state, and sovereign immunity doesn't block that. Remand to determine whether the trooper's activities violated the motorist's constitutional rights.

Friends, the Cato Institute would like to publish a book written by a businessman who believes he was falsely accused of malfeasance by the Securities and Exchange Commission. Faced with the threat of cripplingly expensive litigation (even if he won), the businessman settled. Now he wants to share the story of how the SEC used its enormous power to extract the settlement. But one condition of the settlement is that he must never publicly dispute the allegations against him. This week, Cato, represented by IJ, launched a First Amendment challenge to the agency's policy of imposing such gag orders, a policy that serves no legitimate public purpose but does shield the agency from public scrutiny of its enforcement actions. Click here to read more.