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.
Friends, the Sixth Amendment requires a unanimous jury verdict before a person can be convicted of a serious crime, but, in 1972, the Supreme Court held that the requirement does not apply in state court. This week, IJ filed an amicus brief urging the Court to reverse course and to find that the right to conviction by a unanimous jury is a privilege or immunity of citizens of the United States. Click here to read it.
- After World War II, the United States recruited a former Nazi general to operate a European spy network, which was critical during the Cold War. In 1985, a journalist wishing to learn more about the relationship submitted public records requests; displeased with the responses, he sued. Prodded by Congress, the gov't has since released thousands of documents, and the CIA has publicly admitted to the relationship. The litigation continued, however, and the feds recently released yet another cache of documents—nearly 3,000 pages. D.C. Circuit: Which is sufficient.
- Cyberattackers breach federal gov't database, obtain copious amount of sensitive info on 21 million current and former gov't employees and people who applied to work for the gov't. Did the feds willfully fail to establish appropriate data security safeguards? D.C. Circuit (over a dissent): Plaintiffs who made statutory claims can proceed. Plaintiffs who made constitutional claims cannot proceed, however. If there is a constitutional right to informational privacy, it would apply only to intentional disclosures, which aren't alleged here.
- Yemeni citizen has been at Gitmo for 17 years on the basis of undisclosed classified evidence. A due process violation? The D.C. Circuit says maybe; the district court improperly dismissed the claim.
- Massachusetts auto dealer hires cleaning company to clean (among other things) oil and transmission fluid on the floor. Cleaner slips on oil, falls, and severely damages his knee. First Circuit: An independent contractor can't get damages for an injury caused by a situation he was hired to fix.
- In 2005, Bucks County, Pa. man is involuntarily hospitalized after threatening suicide, putting a gun in his mouth. He's had no mental health treatment since 2006, and, in 2013, a doctor said he could safely handle firearms. Does the federal ban on gun possession by anyone who has previously been committed to a mental institution violate the man's Second Amendment rights? The Third Circuit says no.
- Fayetteville, N.C. officer chases suspect into wooded ravine; a struggle ensues. The suspect gets the officer's gun and pulls the trigger in the officer's face, but the gun doesn't fire. The officer regains the gun and shoots the suspect. And then the stories diverge. The officer shoots the suspect several more times—either while the suspect is standing over the officer (as the officer claims) or after the suspect is "lifted off his feet" and "thrown to the ground" by the first gunshot (as the suspect claims). Fourth Circuit (over a dissent): On summary judgment, we have to believe the suspect. No qualified immunity for an officer shooting an injured suspect already on the ground. [STEM for lawyers note: Contra Michael Bay, basic physics prevents a bullet from lifting anyone into the air.]
- For years, two undercover Detroit cops routinely raid drug dealers' houses and stop their cars to seize drugs and money. Rather than arresting the dealers, they pocket the cash, sell the drugs on the street, and keep the profits. They're caught, convicted of extortion. Cops: This was just part of the job. If anything, we committed robbery, not extortion—they're totally different crimes, and we weren't charged with robbery. Set us free! Sixth Circuit: Nope.
- The city of Chicago boots and then impounds cars that have accrued two or more unpaid parking tickets. (City officials call these car owners "scofflaws"; the vast majority hail from low-income and minority communities.) The city won't release a car until its owner pays all the fines and fees, even if the owner has filed for a Chapter 13 bankruptcy. Seventh Circuit: Filing a bankruptcy petition triggers an automatic stay that requires the city to return the cars. Give those cars back. (IJ is currently suing Chicago over a different aspect of the city's impound program.)
- Ferguson, Mo. officer shoots, kills 18-year-old, touching off widespread unrest. At the time of the shooting, the teen was with a friend, who claims he was unlawfully seized during the encounter, and an Eighth Circuit panel allowed the friend's claim to proceed. But the full Eighth Circuit disagrees, 6–4. The officer may have (as alleged) told teen and the friend to "get the fuck on the sidewalk," blocked their path with his car, and begun the deadly confrontation with the teen. But the friend was free to—and did—run away. So he wasn't seized.
- In 1970, Congress enacts Title X, which funds family planning services other than abortion. In 1988, the feds adopt rule forbidding Title X grantees from providing referrals to abortion providers as a method of family planning. In 1991, the Supreme Court allows that interpretation of the statute, but a subsequent administration then allows grantees to provide such referrals on request. In 2019, new rules that look a lot like the 1988 rules are re-imposed. Ninth Circuit: And they are likely fine given the 1991 ruling and so can go into effect while litigation proceeds.
- Taxes may be the price we pay for civilization, but it is uncivilized to impose taxes on citizens for income they did not ultimately receive, says the Eleventh Circuit.
- After a second sex offense, Colorado law requires juveniles to be placed on sex offender registry permanently. Cruel and unusual punishment? Could be, says two-thirds of a Colorado appeals court. Remand to the trial court to address the question first. (H/t: @Coloradoappeals.)
IJ is excited to announce a new opportunity to join the team as a Law and Liberty Fellow at our headquarters in Arlington, Virginia. If you are a rising 3L or recent law graduate and you are interested in a career in litigation and public interest law, this Fellowship is your opportunity to join IJ's litigation team! IJ is accepting applications through July 15 and will notify all applicants of decisions by the end of August for two-year Fellowships beginning in August 2020. To learn more and apply, click here!