The Volokh Conspiracy

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

Volokh Conspiracy

Short Circuit: A Roundup of Recent Federal Court Decisions

Tire chalking, evidence tampering, and robocalls.


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

One of the drug war's more pointlessly punitive policies is going up in smoke. Until this month, both New York and Pennsylvania mandated suspending the driver's license of anyone convicted of any drug crime, even crimes wholly unrelated to driving. In recent years, a combined 330,000 driver's licenses were suspended in the two states. Recognizing that this does little to protect the public and makes it far harder for ex-offenders to maintain steady employment (one of the best bulwarks against recidivism), New York and Pennsylvania finally scrapped their suspension statutes. Over at, IJ's Nick Sibilla has more.

  • The House of Representatives begins each day with a prayer, approximately 40% of which are delivered by guest speakers from a variety of faiths. Former pastor-turned-atheist asks to deliver a secular "prayer" to the House, but the House Chaplain turns him down. An Establishment Clause violation? D.C. Circuit: If the House is allowed to start the day with a prayer, it's allowed to insist that the prayer be religious in nature (even if it seems to have adopted that policy solely in response to this litigation).
  • Trinidadian green card holder has been subject to removal from the United States since 2007 but has routinely been granted administrative stays that have permitted him to remain in the country with his American-citizen wife and daughter. Now an immigrant rights activist, he has a testy confrontation with ICE officials when clergy and elected officials accompany him to one of his scheduled check-ins, resulting in negative publicity for the agency. ICE suddenly develops a renewed interest in deporting him. Unconstitutional retaliation for protected speech? Second Circuit (over a dissent): Although Congress tried to take jurisdiction of this question away from us, the Constitution forbids that. He stays for now.
  • Defunct bar prep course sues Barbri and a host of law schools, alleging a wide-ranging conspiracy to keep it off campus and give Barbri a monopoly over the market for foreign Master of Laws students taking the bar. Second Circuit: The documents you attached to your complaint suggest you were barred from campuses not because of any conspiracy but rather because students thought your course materials and business practices sucked. Case dismissed.
  • Federal law provides money to states to assist foster parents with the care of foster children. Can foster parents sue in federal court if the state has been unforthcoming with the money? Second Circuit (deepening a circuit split): That's the bargain the states struck in exchange for the money. Dissent: That apparently comes as a surprise to the 14 states that submitted an amicus brief disagreeing with the majority.
  • Here's a quick test for determining whether a new judicial decision involves a hot-button culture war issue: Is the list of participating amici 10 or more pages? Relatedly, Third Circuit: A Catholic charity that has provided services to the city of Philadelphia for a century, but whose religious beliefs preclude it from certifying same-sex couples as foster parents, is not entitled to a preliminary injunction that would require the city to renew its contract with the charity. (Also the Third Circuit: You guys have helped a lot of kids together over the past 100 years, so it would be fantastic if you could work this out.)
  • Pennsylvania Senate president pro tempore frivolously removes a state-law redistricting challenge to federal court, triggering emergency motions/hearing. The case is remanded back to state court within two days. Third Circuit: And the $29k in costs and fees awarded to the plaintiffs for that brief trip to federal court was completely reasonable, though the Senate president, sued in his official capacity, cannot be held individually liable for them. Sorry, taxpayers.
  • American Association of Political Consultants: Federal law prohibits us from making robocalls to cell phones but allows robocalls from people trying to collect federal loans. That violates the First Amendment! Fourth Circuit: We've got good news and bad news. The good news is that we agree with you. The bad news is that we're going to fix the problem by prohibiting the loan collectors from making robocalls, too.
  • A nonprofit trade association wants to hire in-house lawyers to provide legal advice and services to its members. Several states allow this, but North Carolina law says only lawyer-owned business entities are allowed to practice law to preserve the high ethical standards that lawyers are famous for. Fourth Circuit: While this is a "close" case, this does not infringe your rights to free speech or free association, has a rational basis, and is not unconstitutionally vague.
  • Louisiana police officer is struck by a heavy object during a Black Lives Matter protest, suffering significant injuries. He sues the individual protest organizer, Black Lives Matter, and #BlackLivesMatter. Fifth Circuit: You can't sue social movements or hashtags, but you've alleged enough facts for the negligence claim against the protest organizer to go forward.
  • Louisiana woman makes "politically incorrect" statements on Facebook about a trans person she saw while clothes shopping, gets fired. Has she been discriminated against for being heterosexual, in violation of Title VII? Fifth Circuit: She has not because Title VII doesn't cover sexual-orientation discrimination. Concurrence: "Title VII does not grant employees the right to make online rants about gender identity with impunity. I would stop there." (NB: The Supreme Court will consider this question next term).
  • Fort Worth, Texas police go to wrong home in response to burglary alarm, rouse septuagenarian. Allegation: Though he obeyed command to set down his gun, police shot, killed him and then tampered with the crime scene, gave false statements so as to make the shooting look justified. Fifth Circuit: The excessive force claim can go to trial. But no suing (at least not yet) over the attempted cover-up because the officers (alleged) actions haven't prevented plaintiffs from accessing the courts.
  • Lollygagging drivers, cross your fingers! Chalking—the common practice of marking car tires to see who's been parked too long—is a search under the Fourth Amendment. That, holds the Sixth Circuit, is what a trespass-based legal theory requires. If law enforcement searches a car by affixing a GPS tracker to it (as the Supreme Court held in 2012), they also search a car by putting chalk on it. Stay tuned to the ongoing litigation to see if that means chalking searches are unconstitutional.
  • Homeland Security agent in Detroit uses his position as a federal officer to illegally detain someone for personal purposes. Yikes. And then at trial for that, prosecutors threaten him with impeachment evidence of his (alleged) lying about other misconduct on the job, which he committed as a favor for a woman he was sleeping with. More yikes. He doesn't want to get impeached, so he chooses not to testify. Sixth Circuit: The prosecutors could do that. Conviction stands.
  • In 2004, FBI fingerprint analysts finger the wrong guy for a terrorist bombing in Spain. Fast-forward to the present: Using the same (though perhaps updated) method, FBI fingerprint analyst fingers man for 2015 bank robberies. Should the man have been allowed to bring up the 2004 incident at his trial? The Seventh Circuit says no; by all means, cross-examine analysts about the method's error rates, but identifying a specific wrongful imprisonment would appeal to the jury's emotion and not their reason.
  • Allegation: After suspect drops his gun and submits to arrest, Springdale, Ark. officer points his service weapon at the suspect's head and says, "I'll blow your fucking brains out if you ever approach me like that again." Eighth Circuit: Compliant suspects have a clearly established right not to have guns pointed at them. No qualified immunity. Judge Colloton, concurring: The decision that clearly established that right is pretty iffy, but it controls here.
  • Allegation: Escondido, Calif. police investigating report of domestic violence take man, who was not the subject of the report and was not aware of the officers' presence, to ground as he exits apartment. Ninth Circuit (on remand from the Supremes): There is no case on point clearly establishing that officers can't tackle people who pose no apparent danger. (Nor is there now.) Qualified immunity.
  • Covina, Calif. police search man in 2013, resulting in conviction for possessing contraband. In 2016, the conviction is reversed; the search was illegal. Shortly after, the man sues officers, the city for false arrest (among other things). Which was too late, says the Ninth Circuit. That he was still appealing his conviction when his deadline to file suit expired doesn't change anything.
  • Police enter Elbert County, Colo. home that they know has two occupants: the owner and a guest for whom they have an arrest warrant (for a nonviolent crime). They set loose a dog into bedroom to bite, it turns out, the guy for whom they did not have a warrant (who says he didn't hear police announce their presence). Excessive force? Tenth Circuit: No.

Friends, Washington's state constitution is more protective of property than the U.S. Constitution, declaring, among other things, that "private property shall not be taken for private use." And that was no accident. By 1889, when the state's constitution was ratified, Washingtonians had endured decades of abuses at the hands of a corrupt territorial government, which enabled land grabs, bestowed monopolies, and granted special privileges to personally or politically favored interests. Thus, the Washington Constitution imposes stringent safeguards against taking property from A to give to B, and Washington courts have long applied these safeguards faithfully. Until now? In an amicus brief, IJ urges the Washington Supreme Court to decline the city of Seattle's invitation to take Wite-Out to all the things that make the state constitution's takings provision unique and cool.