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.
An honest living is one of the best ways to prevent re-offending. But across the country, people with criminal records face more than 10,000 regulations that block them from obtaining a license to work. As an in-depth Washington Post article reveals, these regulations are "often arbitrary and ambiguous," like denying a license based on one's "good moral character." Fortunately, over two dozen states have enacted reforms to pare back these restrictions in recent years. Click here to read the full Post article.
- Suffolk County, N.Y. officials retain nonprofit organization to visit the homes of registered sex offenders and verify their addresses. Registered sex offender: That's an unconstitutional seizure. District court: Even if the home visits amounted to "seizures," they were justified under the Fourth Amendment's special needs doctrine. Second Circuit: Just so. Even though the nonprofit refers noncompliant sex offenders to the police—which sounds a lot like crime control—the main goal of the program is to improve the accuracy of the sex offender registry. Which is a special non-law enforcement need, so the program is A-OK.
- Under federal law, children born outside the U.S. to unmarried noncitizens can automatically gain citizenship if their mother becomes a citizen, but fathers can only pass on citizenship to their out-of-wedlock children if they first legitimate them. But what if the mother is deceased and the only way to legitimate the child is through marriage of the parents? Third Circuit: Creating a system where fathers—but not mothers—are forever precluded from passing on citizenship to their children violates equal protection.
- Allegation: TSA screeners falsely accuse traveler of assault. She spends 18 hours in jail and is charged with 10 crimes, all of which are resolved in her favor after TSA declines to turn over video and the screeners either don't show up to court or give contradictory testimony. Can she sue? Third Circuit (2017): One can sue when federal law enforcement officers commit intentional torts, like fabricating criminal charges. But screeners aren't law enforcement, and Congress hasn't waived sovereign immunity for mere employees. Third Circuit (en banc, over a dissent): Screeners search people. They are law enforcement, and the suit can proceed.
- Man is barred from purchasing a gun but, because of a lapse in the FBI's background check system, buys one anyway from a federally licensed firearms dealer. Two months later, the man uses the gun to murder nine people in a Charleston, S.C. church. Can the survivors and families of the deceased sue the feds? The Fourth Circuit says yes.
- Did Mississippi officials dilute African Americans' voting strength in District 22, which includes the Mississippi Delta, when they redrew its legislative boundaries in 2012? (The majority of the district's voters are African American, but African American-preferred candidates consistently lose there.) Indeed so, says the Fifth Circuit, which violates the Voting Rights Act. The boundaries cannot be used in the November 2019 election. Dissent: "Districting is the politics of politics." And the district court's order to redraw the lines to increase black voters by 11% violates the Equal Protection Clause.
- As a Detroit woman is stirring a pot of macaroni on Thanksgiving eve, masked police officers break down her door, handcuff her tightly, and respond thusly when she complains of pain: "[S]hut up, bitch, you shouldn't be so fat." In the excessive force lawsuit that ensues, officers invoke qualified immunity. Officers: "Handcuffing that results in bruising does not violate any clearly established constitutional right." Sixth Circuit: Point of fact, it can. So to trial the case must go.
- Allegation: Detroit woman legally purchases firearm after her home is robbed. Seeking to familiarize herself with it, she fires several rounds from her front porch into the abandoned house next door. Police are called and quickly home in on the woman's fiancé (despite her loud protestations that she shot the gun), whom they beat and arrest. One cop informs the man he's "going down for attempted murder of a cop" and writes a report alleging the man fired shots at the cops, though no other officers or evidence corroborate the report. On the morning trial was to begin, the prosecutor learns—for the first time—that an evidence tech's report contradicts the cop's report. Case dismissed. Sixth Circuit: No qualified immunity for the cops.
- Chicago man, on Facebook: "Keep pushing me and it won't end well." "I've given plenty of warnings." "I swear to Allah and everything I hold dear that I will resort to murder in the next 30 days." Chicago man, on trial: These "emulations of rap songs" are protected by the First Amendment. Seventh Circuit: They are not.
- Allegation: After car does U-turn to avoid roadblock and woman admits to possessing marijuana, St. Louis police conduct strip and body cavity search on the woman—out of public view but in view of a male officer. (No additional contraband is found, it seems, and the woman is not charged.) Eighth Circuit (with a pair of partial dissents): Her unreasonable search claim can proceed. But she can't sue for excessive force because there's no precedent saying officers can't slam handcuffed and unresisting (if distraught) suspects into hard surfaces. Nor can she sue over the (concededly) inaccurate incident report that police filed.
- Following the Supreme Court's decision in Janus v. AFSCME, are mandatory state bar association dues now unconstitutional? Eighth Circuit: Not at all! You see, Janus was about unions; it didn't say anything about guilds.
- Thirty-seven-year-old man and 16-year-old girl have sex, which is legal in Nebraska. He records it and shares the video only with her. Eighth Circuit: Which is child porn. Conviction and eight-year sentence upheld. Concurrence: This result is "unseemly and quite possibly unfair" but compelled by Supreme Court precedent.
- Allegation: Fresno, Calif. police carry out a search warrant, report they seized $50k cash. But according to the targets of the search, they actually seized $150k cash and $125k worth of rare coins. Can the property owners sue? Ninth Circuit (March 2019): No. There's no precedent saying cops can't steal things they seize while executing a search warrant. Ninth Circuit (this week, a revised opinion with a new concurrence from Judge M. Smith): Yeah, we got this right. (Head over to California Appellate Report for more.)
- Man becomes convinced that, as a result of mistreatment by a Veterans Affairs medical center, he is entitled to millions of dollars and is the legal owner of the center itself. He is, alas, mistaken, but he makes multiple phone calls in a single day in which he asserts his position to a staffer in terms both vulgar and personal. Does it violate the First Amendment to charge him with violations of Washington state's telephonic harassment law? Two-thirds of this Ninth Circuit panel says no.
- People who suspect their names have been added to the Terrorist Screening Database can find travel to be a nightmare, but they're always permitted to seek review by the Department of Homeland Security. Constitutionally sufficient process? Eastern District of Virginia: Well, DHS doesn't ever actually tell you if you are or were in the database, so no, no it's not.
- "Honey, you've got to read this! The New Mexico Supreme Court just abolished the spousal privil … oh crap."
- Instead of the will of the people, elections in North Carolina reflect "the carefully crafted will of the map drawer," says a state trial court, ruling that legislative boundaries drawn by Republican lawmakers violate the state's constitution. (There will be no appeal.)
In July, Mississippi outlawed veggie burgers—or at least calling them veggie burgers. Which violates the First Amendment! The label—and other banned labels like "meatless meatballs" and "vegan hot dogs"—is not confusing to consumers. Rather, the ban served to protect the meat industry from competition from vegan and vegetarian food companies. But this week, and in response to an IJ lawsuit, officials reversed course, proposing new rules that replace criminal penalties with common sense. Click here for more.