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 month, a divided Seventh Circuit panel overturned a $4 mil jury verdict against Polk County, Wisconsin. The jury had faulted the county for failing to prevent repeated sexual assaults of inmates by one of its guards, but the Seventh Circuit noted that the guard had violated county policy forbidding such assaults. This week, IJ filed an amicus brief urging rehearing en banc. From the brief: "If the panel's decision stands, municipalities in this Circuit will be able to skirt liability for constitutional infringements simply by promulgating policies they have no intention of ever enforcing." Over at Forbes.com, IJ's Nick Sibilla has more.
- Man parks his car in a reserved parking spot, for which he lacks a permit, about 1,000 feet from the U.S. Capitol. After cops discover three guns in the car, man is convicted of possessing a firearm while on the Capitol grounds. Following a trip to the U.S. Supreme Court, the case returns to the D.C. Circuit for a ruling on the man's Second Amendment and due process defenses. Which lack merit, the court affirms. The conviction stands.
- Seeking to escape the murderous wrath of a Mumbai mobster, Indian man enters the U.S. on a visitor's visa with his wife and two children. Over the next 20 years, he has two more kids and builds a successful business that enables him to be the sole provider for the family and put his kids through college. Yikes! He's arrested during a routine traffic stop, and the gov't seeks to deport him. Board of Immigration Appeals: Sure, it would be difficult for his U.S. citizen children if he were deported, but it wouldn't be substantially more difficult for them than what one would expect in such a situation. And he's 19 years too late to seek asylum. Send him back. Third Circuit: Indeed.
- Allegation: Forced by a federal injunction to permit a "far-right advocacy group" to hold a rally, Charlottesville, Va. police adopt a stand-down policy for the rally and refrain from intervening in the violent confrontations that ensue. Counter-protestor is maced, beaten, and soaked with bottles of urine by white supremacists while police stand by and do nothing. And the counter-protestor cannot sue the police for failing to protect him, affirms the Fourth Circuit.
- Allegation: Officer points gun at Waverly, W.Va. family dog that is restrained and can't reach the officer. A 113-pound woman steps between him and the dog. He grabs her arm; she struggles; he flings her to the ground, arrests her. He then enters the home without a warrant or consent and seizes electronic devices, including a phone with video of the incident. The officer makes statements that "were not entirely truthful," and the woman is charged with obstruction. (A jury acquits.) District court: Can't sue over that. Qualified immunity. Fourth Circuit: Reversed.
- Allegation: Attala County, Miss. officer gives man, whose speech is unintelligible, a lift, drops him off at county line at dusk—per county custom of removing vagrants to other jurisdictions. Shortly after, the man is killed by a passing motorist. Fifth Circuit: No qualified immunity for the officer. (The district court denied qualified immunity to the county as well.)
- A sexagenarian is raped and murdered in her Kalkaska, Mich. home in 1996. Following a tip from a jailhouse informant, police home in on 22-year-old suffering from brain damage and mental illness. He confesses after nine interrogations and multiple lie detector tests. Two DNA samples are on the victim—the inmate does not match one, and the other cannot be tested using then-available technology. He's convicted anyway. After improvements in DNA technology, the other DNA sample is tested in 2013, and it also excludes the inmate. His conviction is vacated, he's released, and he sues the officers who interrogated him for coercing the confession, plus the county. Sixth Circuit: No qualified immunity for two of the officers. (Click here for some local journalism.)
- The Sixth Circuit determines that Tennessee's General Assembly lacks standing to pursue its lawsuit alleging the feds violated the Spending Clause and the Tenth Amendment when Congress enacted laws requiring states to provide Medicaid to eligible refugees.
- Allegation: Kansas City, Mo. police apprehend homicide suspect. (Turns out he's innocent.) Nonetheless, detectives then send SWAT into his home to search for evidence. Yikes! The suspect hasn't lived there for months; there's no evidence to be found. Instead, there are four innocent occupants, including a 2-year-old who suffers a significant development regression after officers ignite a flash-bang grenade in the room she's in. Eighth Circuit (over two partial dissents): No qualified immunity for the SWAT officers; qualified immunity for the detectives.
- The Koala—a student newspaper at the University of California, San Diego—publishes an article satirizing safe spaces and trigger warnings. The student government (triggered, perhaps) promptly votes to eliminate student-organization funding for all print media. The Koala sues. District court: Case dismissed. The Koala's claims are barred by the Eleventh Amendment. Also, its Free Press Clause claim fails on the merits. So does its Free Speech Clause claim. And its retaliation claim. Ninth Circuit: We disagree with literally everything the district court said. The case can proceed.
- Montana prison officials allegedly mistreat mentally ill inmates, keeping them in solitary confinement for months and years at a time, denying them medication, among other things. Cruel and unusual punishment? Ninth Circuit: The case should not have been dismissed. Reassigned to a different district judge.
- Allegation: Caldwell, Idaho police threaten to arrest woman for harboring a fugitive if she doesn't consent to search of her house. She consents but isn't told they're sending in a SWAT team. The raid leaves gaping holes in ceilings and walls and saturates the house with tear gas, rendering it uninhabitable for two months. (The fugitive isn't there.) Can she sue? Two-thirds of a Ninth Circuit panel says no.
- The feds intercept package of meth headed to man's Honolulu condo. They replace nearly all the meth with rock salt and deliver it. But it's unclear if the man will pick up the package from the building's mail room and take it to his condo or if the package will be picked up and taken somewhere else, so officers don't think they can get a warrant to search the condo. The man takes the package to his condo, and officers knock down the door when he declines to open it. Ninth Circuit: The search wasn't unreasonable. He could have been destroying the evidence. Dissent: Destroying the rock salt? They needed a warrant.
- NPR publishes an unflattering story about a quixotic musician, including such highlights as the time the man pretended to be Jimi Hendrix's son and the time he attempted to sell his own album to himself on an internet auction for $18k (besting the previous record of $15k set by an original 1987 promo copy of Prince's The Black Album). After NPR refused to pull the article, he filed a 93-page pro se complaint alleging the piece was defamatory. Tenth Circuit: Nope.
- Allegation: Barber County, Kan. officers give man inconsistent orders (hands up, get on the ground). Eight seconds later, an officer shoots him in the chest with a beanbag from close range, killing him, even though he was unarmed, standing still with hands at his sides. Tenth Circuit: Video from bodycam doesn't show everything but doesn't contradict the allegations. A jury should decide if this was excessive force.
- Colorado's Taxpayer Bill of Rights (TABOR) limits state and local legislators' power to levy taxes; such measures must instead go to a popular vote and any revenues raised in excess of the prior year's spending must be refunded to taxpayers. Legislators: Which violates the federal law that gave statehood to Colorado. Tenth Circuit (2016, after a trip to SCOTUS): Legislators, suing on behalf of the legislature, don't have standing to challenge TABOR. Tenth Circuit (2019): But local gov'ts do.
Charlottesville, Virginia imposes a business license tax on freelance writers. Which is weird because business license taxes are meant to defray the cost of infrastructure that businesses and their customers use, and freelancers like Corban Addison and John Hart don't have storefronts or walk-in customers; they sit at their desks and write. And it's also unconstitutional. The First Amendment prohibits the gov't from treating speakers unequally without a good reason, and the traditional press is exempted from the tax. Moreover, the Fourteenth Amendment prohibits vague laws, and no ordinary freelance writer could know from reading the ordinance that they are subject to the tax. So earlier this week, Corban and John sued the city and surrounding Albemarle County. Click here to read more.