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: Special guests Scott Michelman of ACLU-DC and Adrian Snead of Whiteford Taylor Preston tell us what's what. There's a pending petition for cert over a police dog bite, a pending petition for en banc review that seeks to hold prison officials responsible for a guard who sexually assaulted inmates, and a case where police shot an innocent bystander (that the panelists agree is due for further review). Click here for iTunes.
- Allegation: Hamas terrorists post messages on Facebook encouraging violence in Israel; Facebook's algorithms display those messages to people receptive to them who then injured and killed Americans in Israel. Second Circuit: Can't sue Facebook over that. Congress immunized internet publishers from these kinds of claims. Dissent: Using algorithms to match people with messages means Facebook is more than a publisher.
- White-collar defendant requests pre-trial release, offering to pay for private armed security guards to ensure he doesn't skip town. District court: No. Second Circuit: Affirmed—not least because the sort of "self-funded private jail" the defendant requested would benefit the wealthy alone.
- In which the Third Circuit examines the "non-utilitarian, sculptural features" of a full-body banana costume. (See Appendix A for photographs of said costume.)
- Allegation: Following up on vague tip, police interrogate two teen brothers, each with severe mental disabilities, suspected of the rape and murder of 11-year-old Red Springs, N.C. girl. After hours of continuous questioning punctuated by threats, racial epithets, and empty promises, the brothers sign contradictory confessions written by the officers. They spend 31 years in prison until DNA evidence exonerates them and proves another man was the culprit. Can they sue the officers for coercing their confessions, suppressing evidence that pointed to the other man during the initial investigation? The Fourth Circuit says yes.
- Unemployed sexagenarian—now suffering from degenerative ailment—seeks to discharge student-loan debt she incurred while enrolled in community college in 2012. Fifth Circuit: Gotta talk to Congress about that. They write the bankruptcy laws. And they say discharge is not available under the demanding "undue hardship" standard that applies to student loans.
- In 1896, the Supreme Court ordered new trials for two men convicted of seeking to aid Cuban revolutionaries seeking to secure independence from Spain. In so doing, the Court invented the doctrine of plain error review, an exception to usual rule that appellate courts mustn't consider arguments that weren't raised below. So writes Judge Oldham of the Fifth Circuit, tracing the doctrine's waxings and wanings and concluding the Supreme Court has allowed it to overwax of late.
- Allegation: Parma, Ohio man satirizes local police department with fake Facebook page. (Minorities need not apply, pedophiles to receive police honors, etc.) The displeased police respond by arresting the satirist. Sixth Circuit: Ridiculing the government is as American as apple pie. Most of the satirist's claims survive a motion to dismiss. [There's more at Popehat.]
- Drunk U.S. Marshal in Chicago takes phone call at the movies, threatens other patrons when they heckle him. Moviegoers then complain to the Marshal Service—and it turns out the guy isn't a marshal at all. The last time he (allegedly) did this—when he used emergency lights to run a red light, then lied to the cops who pulled him over—the Marshals told him to quit it. So this time he's promptly convicted of impersonating a federal officer. Seventh Circuit: No First Amendment problem there. You can't falsely shout marshal in a crowded theater. [There's more at Popehat.]
- Man spends 10 years in prison for cocaine possession based on the testimony of a dirty Chicago cop. Now freed, he sues the (now incarcerated) cop, who pleads the Fifth while claiming that he would "love to" testify if his own case were not on appeal. Seventh Circuit: The jury should have been told that you can only invoke the Fifth to avoid incriminating yourself. New trial.
- Allegation: Three Rockford, Ill. detectives use physical force, threat of prison time to obtain false statements from witnesses that helped put three innocent men in prison for more than 10 years. Seventh Circuit: Which is not fabricating evidence unless the detectives knew the statement was false. One detective has admitted as much (and also admitted to handcuffing a mother and leaving her baby crying on the floor in attempt to get a statement), so the fabricating evidence claim against him can proceed. The other detectives are off the hook. (Though different claims against them can proceed.)
- Allegation: Inmate in Chester, Ill. penitentiary attempts suicide three times in solitary. A nurse mocks him for failing and urges him to try again. Cruel and unusual punishment by the nurse? District court: No. Seventh Circuit: That claim should have gone to trial. And it could be that he gets a new trial (on separate claims that were allowed to proceed to trial) if the gov't didn't have a good enough reason to strike three of the four potential black jurors.
- Craighead County, Ark. officials use private company to run probation for people convicted of misdemeanors. The company charges probationers monthly fees, other fees on pain of arrest, which results in more fees. (On one day in 2016, of 34 defendants brought to court, only six were charged with crimes. The remaining 28 were in jail for failing to pay the company.) Voters elect new judges who promise to cease using the company, erase outstanding debts. Company: Which violates the Contracts Clause, Takings Clause. Eighth Circuit: Can't sue the judges over that. The judges are entitled to modify probation conditions and discharge debts.
- In Minnesota, if wineries want to offer tastings at their farms and sell directly to consumers, at least 51 percent of the grapes they use must be grown in state. An unconstitutional boon to Minnesota's grape industry at the expense of out-of-state growers? The wineries certainly have standing to find out, says the Eighth Circuit. The case should not have been dismissed. (This is an IJ case. Click here to learn more.)
- Allegation: Teased incessantly by another student, 7-year old yells at the other student, declines to calm down as instructed. By the time a Kansas City, Mo. school resource officer arrives, the student has stopped yelling. But the officer drags him crying to the principal's office in handcuffs and leaves them on until the student's father arrives 20 minutes later. District court: Could be an unreasonable seizure or excessive force. Eighth Circuit: Reversed. The kid tried to pull away from the officer, and, if he wasn't handcuffed, he might have attempted to leave and posed a harm to himself.
- Missouri law permits random roadside inspections of commercial vehicles without any probable cause. Rancher: Which violates the Fourth Amendment as applied to my dump truck, which I only use for ranch operations and am legally barred from using to transport people or goods for hire. Eighth Circuit: Not so. Warrantless inspections are okay in highly regulated industries, which commercial trucking is.
- Allegation: St. Louis prosecutor dismisses all charges against man, but he remains in jail for eight days. Can he sue the prosecutor? The Eighth Circuit says no. While there is a right not to be imprisoned without charges, the prosecutor has no clearly established duty to ensure that anyone is released from jail. (The man's claims against other officials are still pending.)
- North Dakota is the only state that does not require voters to register. You just show up with ID and vote. Plaintiffs: A 2017 change to the law disenfranchises roughly 10% of the state's eligible Native American voters, many of whom lack residential street addresses and thus can't get the requisite ID. Eighth Circuit: The law is not a substantial burden to the vast majority of eligible voters, and it's not clear how many would-be voters tried to obtain ID and were unable to. Dissent: The law was purportedly enacted to address voter fraud, but there is no evidence of voter fraud.
- Guam officials seek to hold referendum allowing voters to express their opinion about the future of the relationship between Guam and the United States but will only permit "Native Inhabitants of Guam" to vote. Ninth Circuit: Which means restricting voting based upon race, which is explicitly prohibited by the Fifteenth Amendment.
- Mexican national enters the U.S. 20 miles east of a port of entry. It's a federal crime for aliens to enter the U.S. at any point other than that designated by immigration officers. And it's a separate federal crime to elude examination by immigration officers. He's charged with the latter. Ninth Circuit: Nope, you can only elude examination at a place where examinations occur—ports of entry. Concurrence: But I sympathize with the gov't, because we've basically made it impossible to enforce the other law about border crossing.
- In the Tenth Circuit, we encounter the following allegation: "shepherds tend herds of 1,000 sheep or more, . . . protecting them from the constant threat of natural predators like coyotes, mountain lions, and wolves . . . . During lambing . . . season, the shepherds assist the animals in the birthing process, and at all times, the shepherds provide for the health and medical needs of the herd." Will this somehow result in a civil RICO claim surviving a motion to dismiss? Ewe bet it will. [There's more at Popehat.]
- Jury convicts investor of wire fraud for participating in scheme wherein attractive women lured men to Miami Beach night clubs to buy wildly overpriced drinks. Eleventh Circuit (2016): Conviction overturned. The jury should have been instructed that the failure to disclose the financial arrangement between the women and the night clubs isn't by itself wire fraud. Eleventh Circuit (2019): It's not double jeopardy to retry the investor for concealment-based money laundering, a charge the first jury did not reach a verdict on. His new conviction stands.
- And in panel rehearing news, the Ninth Circuit has withdrawn its decision in a lawsuit with broad ramifications for businesses that classify workers as independent contractors rather than employees. The California Supreme Court will have a chance to weigh in.
For a few months this past winter and spring, Jessica Barron and Kenny Wylie let their son's 19-year-old friend crash at their Granite City, Ill. home because he didn't have anywhere else to go and it was cold. But the friend lied to them and tried to steal from them, and they ultimately kicked him out after he burglarized a restaurant. That should have been the end of the matter, but now city officials are trying to evict Jessica, Kenny, and their three teenage children using an ordinance that requires landlords to evict tenants if any member of the household commits a crime. Though their houseguest is long gone and their landlord views them as model tenants, the city wants to render the family homeless. This week, they joined with IJ to challenge the constitutionality of the ordinance. Click here to read more.