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.
New on the Short Circuit podcast: We make the stirring, strident claim that the Second Circuit was pretty much on the mark in its recent opinion finding a First Amendment problem with President Trump blocking critics on Twitter. Click here for iTunes.
- In 2018, President Trump issues three executive orders instructing the feds to, among other things, limit the time federal employees can spend working on union business on the taxpayer's dime. A bevy of federal labor unions challenge the orders, arguing, among other things, that the President has no authority to issue executive orders related to federal labor relations and that the orders violate the First Amendment. D.C. Circuit: The claims must be presented to an administrative review board before they can be heard in court.
- Twelve-year-old at Southborough, Mass. boarding school allegedly suffers from electromagnetic hypersensitivity, meaning that the radio waves generated by common electronics cause him headaches, nausea, and other symptoms. (A school staffer's internal email: "Blahahahahahahahaha!") Does the student have any claims for the school's refusal to turn off the Wi-Fi? First Circuit: He does not. [Fun fact: The scientific consensus is that electromagnetic hypersensitivity doesn't exist. But that hasn't stopped dozens of supposed hypersensitives from moving to West Virginia to live in a federally designated radio-quiet zone.]
- Friends, Judge Selya of the First Circuit has seen fit to give us this vocab quiz: encincture, rescript, assay, gainsay, repastinate, algid.
- New York City bans advertising in for-hire vehicles like Ubers because passengers find them deeply, deeply annoying. Yet the city allows similar ads in taxicabs (via Taxi TV, which, depending on one's perspective, is either a "pleasant diversion" or a nightmare squawkbox). Makers of an advertising app see this as an unconstitutional restriction on commercial speech. Nonetheless, the ban will stand, says the Second Circuit.
- Notorious "pharma bro" hedge fund manager Martin Shkreli is convicted of securities fraud for (among other things) regularly sending false performance reports to investors and using their money to pay his personal debts. Second Circuit: No need to disturb the conviction or $7.3 mil forfeiture order.
- Allegation: Police barge into Camden, N.J. home, beat man unconscious, drag him down stairs. The man serves half of three-year sentence for drug possession, but his case is among 200 criminal cases vacated or dropped after five Camden, N.J. officers admit to planting drugs, filing false reports, lying under oath. Jury: Two officers used excessive force and committed a false arrest, but the man ultimately failed to prove that Camden's (in)action caused these violations. Third Circuit: He gets another chance to prove that claim (and others), this time with the aid of important evidence the district court wrongly excluded.
- The Affordable Care Act mandates that employers, apart from some religious ones, pay for contraception for female employees with reproductive capacity. In 2017, the Trump administration expanded the exemption to include a wider array of religious employers as well as nonreligious employers with moral objections to the mandate. Third Circuit: The district court did not err in imposing a nationwide preliminary injunction. Among other infirmities, the feds likely violated the Administrative Procedure Act by failing to provide the public notice and a chance to comment on the new exemptions.
- Pennsylvania prohibits billboards within 500 feet of a highway interchange: Third Circuit: And while that's legal in some respects, an exception for certain kinds of billboards means the state has to produce evidence justifying the general prohibition. Also, PennDOT needs to issue or deny permits for other highway billboards within a reasonable time limit.
- Virginia law lets circuit courts declare someone a "habitual drunkard," which makes it a crime for that someone to possess alcohol or be drunk in public. Several homeless alcoholics, each prosecuted multiple times after being so declared, sue. Fourth Circuit (en banc, over a dissent): The case should not have been dismissed. The law doesn't specify what makes someone a "habitual drunkard," so judges can make up their own subjective standards. And if a "habitual drunkard" is just anyone who suffers from alcoholism, that potentially violates the Eighth Amendment since the law has the effect of punishing people for drinking they cannot control.
- Campaign consultant is criminally prosecuted, convicted of violating Maryland election laws. He obtains a new trial, and a jury acquits. He then seeks to mail a letter criticizing the prosecutor (a political appointee) to Maryland voters. But he's forbidden access to Maryland's list of voters because he is a resident of Virginia. Fourth Circuit: Which might violate the First Amendment.
- Baltimore man assaults his wife, self-surrenders to police officer that he knows. But the man's arrest warrant goes missing under suspicious circumstances, and he is permitted to leave the station. He corresponds with the officer about self-surrendering the following week and in the meantime murders his wife (outside courthouse where she had just gotten a protective order). Fourth Circuit (2013): No qualified immunity for the officer. Fourth Circuit (2019, over a dissent): Discovery didn't turn up evidence that the officer conspired with the man. Qualified immunity.
- A bevy of Chinese investors put $500k each into a startup electric car company, which later collapses. The investors sue, among others, the company's former chairman (Terry McAuliffe, who went on to become governor of Virginia), asserting that misstatements he made to the media about the company's achievements defrauded the investors into putting up the cash. Fourth Circuit: "We decline to whitewash the alleged misstatements here." But the investors failed to adequately plead they justifiably relied on the misstatements—not least because the misstatements were in English and many of the investors don't understand English.
- Fifth Circuit (2015): No qualified immunity for Lafayette, La. officer who set dog on (allegedly) compliant suspect and shot the suspect at point-blank range, killing him. Jury: The officer used unconstitutionally excessive force but is entitled to qualified immunity. Fifth Circuit (2019): No reason to disturb the jury's verdict.
- This Sixth Circuit decision, on whether a homeowner can sue a lender, turns on the not-insignificant distinction between a loan and a mortgage. (Loan = The money a lender gives a home buyer so they can afford a house. Mortgage = The legal interest the lender acquires in the house that provides assurance, on pain of foreclosure, that the loan will be repaid.)
- Man camping in the Chequamegon-Nicolet National Forest has a gun, which is illegal on account of his multiple felony convictions. Later, the man readily admits to being a white supremacist and proclaims his desire to return to Germany to retrace his Nazi ancestral heritage. Seventh Circuit: And it's just fine for the judge to have considered those beliefs and imposed a longer sentence than the gov't requested. Even though he's never been convicted of a hate crime, such views demonstrate a threat of future dangerousness.
- Allegation: Illinois prison required female inmates to stand naked, remove sanitary products, and undergo body and cavity searches—all in groups and in full view of male officers not conducting the searches. Seventh Circuit: This is a visual inspection of a prisoner, not a physical intrusion, so the Fourth Amendment doesn't apply. Dissent: Forcing a prisoner to manipulate her own body (as opposed to the guards doing it themselves) doesn't make a search reasonable.
- St. Peters, Mo. officials threaten homeowners with up to $180k in fines and 20 years in prison if they do not tear out garden (photos here) and replace it with grass on at least 50% of the yard. (Later, officials say just 5% grass will suffice.) An excessive fine? A violation of the substantive due process right to quiet enjoyment of one's property? The Eighth Circuit dismisses the case on procedural grounds.
- Allegation: Fort Madison, Iowa police enter home of tire-slashing suspect, order him to drop knife. The suspect instead withdraws to a closet. An officer opens the closet door and shoots, kills the suspect (who had not lunged toward or otherwise threatened the officer). Eighth Circuit: Qualified immunity. "It was not clearly established in August 2014 that an officer was forbidden to discharge his firearm when suddenly confronted in close quarters by a noncompliant suspect armed with a knife."
- The DOJ has a pot of money for local police departments who undertake various initiatives. Los Angeles officials: We didn't get the $3.125 mil grant we sought because the DOJ favors jurisdictions that assist with the feds' immigration enforcement efforts, which we decline to do. Ninth Circuit (over a dissent): The DOJ has broad discretion to decide how to allocate funds, and the grant program merely incentivizes, rather than coerces, jurisdictions to provide said assistance. And anyway, lots of jurisdictions that do not provide it were given grants, and lots of jurisdictions that do were not.
- Utah chiropractor is prosecuted for trying to pay $340k in back taxes with checks from closed bank accounts. Usually, courts bring down the hammer when such a defendant—a sovereign citizen—tries to discharge the trial judge "from his emergency war powers jurisdictional duties." Or says that trial must be rescheduled because the defendant is unavailable. Or signs filings with a thumbprint. But not today! The Tenth Circuit holds that the defendant—or, in his view, "the fiction that the court has named as a defendant"—wasn't sufficiently warned before he waived his right to counsel. Conviction vacated.
- San Juan County, Utah officials draw up three voting districts such that white residents predominate in two districts and Navajo residents (who make up 52% of the population) mostly all live in one district, all but guaranteeing two whites and one Navajo are elected to the three-member commission that governs the county. Tenth Circuit: Which violates the Equal Protection Clause and the Voting Rights Act.
- And in en banc news, the Fifth Circuit will not reconsider its holding that landlords do not violate the Fair Housing Act when they decline to accept "Section 8 vouchers," which are used disproportionately by minorities, in neighborhoods that are disproportionately white. Seven judges dissent: Plaintiffs plausibly alleged the defendants are perpetuating segregation.
It's illegal in Florida to give individualized dietary advice without a license that takes years and costs thousands of dollars to obtain. So when Heather Del Castillo, a military spouse who ran a successful health coaching business in California, relocated to Florida, regulators (tipped off by a local dietitian) ordered her to shut down or face a year in jail—per client. But the First Amendment protects the right to give advice on diet and nutrition, and the U.S. Supreme Court recently ruled that there is no exception for so-called "professional speech." This week, a federal judge nonetheless relied on now-overruled precedent to uphold Florida's law—and ignored evidence that there is no good public safety justification for it. On to the Eleventh Circuit! Click here to read more.