The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Drug traffickers' idol, a voice from the grave, and all decent people.


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

Take now, pay later. Over at, IJ's Andrew Wimer explains that courts all over the country are allowing pipeline companies to seize land without paying property owners—sometimes for years. Which violates federal law and the Constitution. Click here for our cert petition asking the U.S. Supreme Court to intervene.

  • "It stands our criminal justice system on its head to hold that even a single extra day of imprisonment can be imposed for a crime that the jury says the defendant did not commit." So says D.C. Circuit Judge Millett, objecting to the practice of increasing defendants' criminal sentences on the basis of charges that a jury acquitted on.
  • South Carolina prisoner, handcuffed and surrounded by multiple guards, refuses to let them take his picture. After seven-ish minutes, one guard has had enough, and she tases the prisoner three times. (The guards get their picture.) Cruel and unusual punishment? Fourth Circuit: No if the guard was trying to secure compliance in good faith, but yes if she was acting maliciously. And this looks malicious enough to get past summary judgment.
  • Court emails notice of final judgment to attorney. But it goes to his spam folder, and he misses the deadline to appeal. Fifth Circuit, in two-page opinion: So no appealing.
  • Marquette, Mich. railway trackman sues his employer, alleging an on-the-job injury. Employer schedules an independent medical exam to assess his injuries. Trackman refuses to fill out medical questionnaire and refuses to answer examiner's questions. Also, his lawyer tags along to the exam, which is . . . uncommon. And the lawyer secretly records the exam on his cell phone. District court: Given the "flagrant and repeated misconduct exhibited by Plaintiff and his attorney," the entire case is dismissed. Sixth Circuit: Affirmed. Although we're generally reluctant to dismiss a plaintiff's suit merely to sanction the plaintiff's lawyer, both the trackman and his lawyer behaved badly here. Judge Sutton, concurring: Also, we shouldn't be at all reluctant to hold parties accountable for their lawyers' misdeeds, even if the parties themselves are not at fault.
  • It takes an awful lot to vacate a conviction under the plain-error standard of review. So why did the Sixth Circuit give two admitted drug dealers a new trial? Let's go to the transcript: "Defendant: I'm just a Catholic believer. Prosecutor: Catholic believer? Do you understand that there is a Commandment that says thou shall not have any god before me? Def: Yes, I understand. Pros: But yet you prayed to the idol for drug traffickers [Malverde] for protection?" Later, in closing: "Pros: I wonder how many prayers he has said to Malverde before he walked into the courtroom yesterday. I wonder if what's going through his mind this morning was, I'm going to say another prayer for protection from the jurors of Central Kentucky."
  • Robber flees a Fort Wayne, Ind. store. In the split second he opens the door, he's shot by a policeman. The officer says he thought the robber was armed. The robber says he was trying to surrender (or at least needed a chance to). The officer: I should have won at summary judgment; don't make me go to trial. Seventh Circuit: The district court said the facts are disputed, so we can't hear your appeal yet.
  • Brace yourself for a habeas head-scratcher. In 2008, Kenosha County, Wisc. husband is convicted in state court of murdering his wife. But at trial, the court admitted a "voice from the grave" letter in which wife wrote that she feared her husband would kill her. Seventh Circuit (2015): Which was a very wrong application of the Sixth Amendment's Confrontation Clause. District court (2015): So within 90 days, the state must either "initiate[] proceedings to retry" the husband or set him free. State court: Proceedings initiated. But wait! Intervening Supreme Court decisions have clarified that wife's letter is admissible after all. So since there's no point in holding a new trial, conviction reinstated. Seventh Circuit (2019): Technically, the state "initiate[d] proceedings to retry" the husband, which is all the federal district court required of it. So as far as appeals go, it's back to square one for the husband.
  • Milwaukee police patrolling high-crime neighborhood espy man with suspicious bulge in his pocket. He walks briskly away from them, appears to place an object between the screen door and front door of nearby home—his home. Officers follow him up onto the porch, check between the doors, find a gun. Suppress the evidence? No need, says two-thirds of a Seventh Circuit panel.
  • Mexican citizen (with U.S. citizen wife and kids) seeks to develop San Diego waterfront, contributes to local elected officials. Which is illegal. Does it violate foreign nationals' First Amendment rights to bar them from contributing to political campaigns? Ninth Circuit: No. Nor does it violate the Second Amendment to bar them from possessing firearms. (More on that from Eugene Volokh.)
  • In 2010, Fremont, Calif. landlord conducts background check of potential tenant, which reveals several criminal charges (but only one conviction). The would-be tenant's application is rejected. He sues the company that did the background check. Did the company violate federal and state law by including a 2000 charge (that was dismissed in 2004) in its report to the landlord? The suit should not have been dismissed, says a partially divided Ninth Circuit panel.
  • And in en banc news, the Sixth Circuit will not reconsider its decision permitting a substantive due process claim to proceed against officials responsible for the Flint, Mich. municipal water crisis. Judge Sutton, concurring in denial of rehearing en banc: If officials intentionally poisoned the water this case should proceed. But if officials were merely grossly negligent, the district court should put an end to this litigation. Judge Kethledge, dissenting: All decent people are sympathetic to plaintiffs, but the law is against them. Officials weren't on notice that there is a right to bodily integrity that can be violated by supplying bad water.

This month, Florida legislators passed a criminal justice omnibus bill that will, among other things, remove unnecessary restrictions on people with criminal records getting occupational licenses. Hear, hear! "When you take away someone's ability to earn a lawful living, the risk of recidivism increases. Clearing the way for people to earn an honest living is one of the best ways to prevent recently released individuals from re-offending," says Justin Pearson, managing attorney of the IJ Florida Office, who testified during the committee process. "But strict occupational licensing requirements make it harder for ex-offenders to find work." The bill now awaits the Governor's signature. Click here for more.