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.
Last week, Texas put an end to one of the state's most bafflingly counterproductive policies: suspending residents' occupational licenses if they defaulted on their student loans. Not only did these suspensions wreak havoc on Texans' finances and livelihoods, but they also made it fiendishly difficult for people to actually repay what they owed. In 2017 alone, state agencies threatened the licenses of more than 4,200 professionals—including cosmetologists, nurses, and teachers—simply for unpaid student debt. Over at Forbes.com, IJ's Nick Sibilla has more.
- In 2017, the feds adopt policy that essentially bans unaccompanied minors in immigration detention from obtaining abortions. D.C. Circuit: Can't do that. Dissent: The case is moot, and the class should not have been certified as is because, among other things, it almost certainly includes individuals who think abortion is murder.
- Consignment business that sells kids' clothing relies on parents to help set up the sales. In exchange, they get first pick of the merchandise. Labor Department sends a letter informing business that the parent "volunteers," who work one or two days a year, are actually employees. So start paying them or else. D.C. Circuit: Indeed. The volunteers look enough like employees to us. Concurrence: Probably should've called 'em independent contractors.
- According to legitimate locksmiths, "scam" locksmiths are tricking search engines into making the scammers appear more geographically available than they actually are. But that doesn't mean the legitimate locksmiths have a claim against the search engines, holds the D.C. Circuit. Congress has made clear that websites are free to publish all the information from third parties that they want.
- Allegation: NYC building inspector has it out for Asians in the construction industry, so much so that he visits job sites and issues violations on his own time, while off duty. Second Circuit: Which may very well violate the Equal Protection Clause. It doesn't violate the Due Process Clause, though, because the official's harassment hasn't completely driven the plaintiff out of business.
- Without warning or provocation, worker at Amazon shipping facility punches coworker in the face repeatedly. He tells Chesterfield County, Va. police that he "does not like homosexuals, so he punched" the victim. Fourth Circuit (over a dissent): Interstate commerce is implicated, so the feds can prosecute him.
- Allegation: Maryland corrections officer is falsely accused of sexually harassing female coworker. In the course of the investigation, the officer reveals that he is gay and HIV positive. The sexual harassment complaint is not sustained, but he's fired anyway. Sexual orientation discrimination? Fourth Circuit: The state hasn't waived sovereign immunity, so his state law claim can't go in federal court.
- Uncounseled plaintiff sues the University of Texas for gaslighting him—that is, per dictionary.com, manipulating him by psychological means into questioning his own sanity. Skipping over whether gaslighting is indeed a tort, the Fifth Circuit affirms dismissal. The state hasn't waived sovereign immunity.
- Timothy Ivory Carpenter—winner of last year's Supreme Court ruling on Fourth Amendment protections for cell phone location data—will remain in prison. So holds the Sixth Circuit, on remand from SCOTUS. Even though officers violated the Fourth Amendment with their warrantless search of Carpenter's cell phone location data, they acted in good faith. So Carpenter's conviction stands. (Memorious Court-watchers will recall that Justice Alito forecast this result in the closing moments of oral argument.)
- Michigan Department of Health and Human Services allegedly collects blood samples from newborns without parents' consent, tests them, then transfers them to a nonprofit corporation, "where they are stored for future use by the state." Parents sue on behalf of themselves and their children. Sixth Circuit: Most of the claims are nonstarters, but Michigan's ongoing storage of the blood samples may violate the kids' Fourth Amendment rights and the parents' Fourteenth Amendment right to direct their offspring's medical care.
- Allegation: Drunk driver is taken to Oakland County, Mich. jail, where male guards subject her to a vicious strip search. Guards: But the hood we put on her to stop her from spitting meant she couldn't tell us apart. So we should get summary judgment because "she cannot prove . . . who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc." Sixth Circuit: That is absolutely not how this works.
- Illinois corrections officials institute a "brunch" program, a bougie euphemism for serving prisoners two meals a day instead of three. Prisoner sues, claiming that the program gave him too few calories. Which, says the Seventh Circuit, the undisputed record rebuts. The program's designer submitted an affidavit that the two-meal brunch menu supplied the same number of daily calories as the regular three-meal menu.
- "If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages?" Despite the lede, the Eighth Circuit immediately answers "no." Specifically, a St. Paul, Minn. police officer who allegedly fabricated a sex trafficking conspiracy cannot be liable under Bivens. (No qualified immunity for the officer, though.)
- If a police officer questioned you and then left to investigate a building, you might think you were free to drive away. If that police officer then followed you on the highway for 19 miles, you might turn on your hazards and pull over. And if you feared for your life because you're black and the officer knows you have a concealed weapons permit, you might put your hands outside the driver's side window. Eighth Circuit: While that behavior is entirely consistent with wanting to avoid being shot, it's also "unusual and may be indicative of guilty conduct." Qualified immunity for the officer, who ordered plaintiff out of his car at gunpoint. Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity.
- Acting on an anonymous tip, ICE agents obtain a warrant for employment-related documents at a California factory. In the course of executing this warrant, 100 armed agents descend on the factory, block all exits, prohibit workers from using their phones, and ultimately arrest 130 undocumented workers (which, in fact, was their plan all along). A Fourth Amendment violation? Ninth Circuit: You can't use a search warrant for documents as a pretense to detain, interrogate, and arrest literal busloads of people.
- Absent-minded bank robber inadvertently places closed pocketknife on bank counter while providing teller with money bag. (The record is silent on whether the bag sported a dollar sign.) Gov't: That's "armed bank robbery"! Ninth Circuit: Hardly. Armed bank robbery requires "active employment" of a weapon, and there was no active employment here. The district court thus plainly erred in accepting the robber's guilty plea.
- Saudi citizen sentenced by Colorado court to eight years to life (for imprisoning, sexually assaulting teenage housekeeper from Indonesia) seeks to serve the remainder of his sentence in Saudi Arabia. Colorado officials deny the request. Tenth Circuit: There is no constitutional right to a hearing before officials make such a decision.
Forfeiture doesn't help police fight crime, but police do use forfeiture to raise revenue—so finds a new IJ study. These findings may not surprise you, dear reader, but proponents frequently tout forfeiture as a key crime-fighting tool while denying critics' charge that forfeiture is used to police for profit. That's why IJ teamed up with Seattle University's Dr. Brian D. Kelly to test these opposing views of forfeiture. The resulting study, titled Fighting Crime or Raising Revenue?, combines local crime, drug use, and economic data with more than a decade's worth of data from the nation's largest forfeiture program. It finds that more forfeiture proceeds do not help police solve more crimes or reduce drug use, but police do ramp up forfeiture activity when local economies suffer. Read the report.