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.
Next month, the U.S. Supreme Court will consider whether parents of an unarmed, unthreatening Mexican teen who was shot dead from across the border can sue the federal agent who killed their son. The Fifth Circuit ruled that they cannot. Click here to read an IJ amicus brief urging the Supreme Court to reverse. "Had Sergio Hernandez been killed by a federal agent in the 19th century, his parents could have brought a damages claim for the deprivation of their son's constitutional rights," says Anya Bidwell, who co-authored the brief. "The Supreme Court's current jurisprudence that essentially eliminates the ability of individuals to sue federal agents for constitutional rights is simply inconsistent with this proud history."
- Though facing charges in federal court for false statements and witness tampering, political consultant for Donald Trump's 2016 presidential campaign persists in airing inflammatory comments about the judge, the investigation, and potential witnesses. And we will not disturb the district court's increasingly strict restraints on his Twittering, Instant-Telegrams, and Facebookery, says the D.C. Circuit.
- Allegation: NYPD officer yanks compliant, unthreatening quinquagenarian arrestee out of her cell, tells her "don't make me hurt you." Frightened, she declines to tell the officer that he put on her handcuffs too tightly, which ultimately results in permanent, debilitating nerve damage. (All charges against the arrestee are later dropped.) Excessive force? Second Circuit: Yes, but qualified immunity. It was not clearly established that an arrestee who shows clear signs of distress but does not verbally inform an officer that handcuffs are too tight is being excessively forced. (Henceforth, it is clearly established, however.)
- After protests at abortion clinics, Pittsburgh officials adopt an ordinance creating a 15-foot "buffer zone" outside the entrance of any health care facility, in which no one may "congregate, patrol, picket or demonstrate." A First Amendment violation? Third Circuit: Not if we interpret "congregate, patrol, picket or demonstrate" super-duper narrowly, so that it excludes the plaintiffs' peaceful sidewalk counseling.
- Louisiana abortion clinic and two of its doctors bring a "cumulative-effects challenge" to the state's abortion laws, arguing that, collectively, they pose an undue burden even if individual rules by themselves do not. Fifth Circuit: Maybe you can do that, but in quantifying the cumulative effects, you only get to count provisions that you would have standing to challenge individually.
- Victoria County, Tex. district attorney rescinds job offer to prosecutor applicant after another man lodges a complaint suggesting he's a "flicking lunatic." The man also files a state bar grievance accusing the applicant of posting on a white nationalist forum and issuing murder threats. The applicant sues the man for defamation and other torts, seeking a cool $100 mil in state court. The man invokes diversity jurisdiction, removes the case to federal court, and seeks to dismiss the claims under Texas' anti-SLAPP statute. Fifth Circuit: Alas, as we decided two months ago, the state anti-SLAPP statute doesn't apply in federal diversity cases.
- In 1999, Killeen, Tex. teenagers carjack husband and wife at gunpoint, keep the couple in the trunk for hours while they empty the couple's bank account and try to pawn her wedding ring. From the trunk, the couple sings Gospel songs and invites the teens to church, but one of the teens shoots them both in the head, killing the husband but not the wife. She burns alive when they torch the car. Fifth Circuit: A 35-year sentence for one of the teens, who left before the murders, for aiding and abetting the carjacking is not unconstitutionally excessive. (The two teens who committed the murders have been sentenced to death and are awaiting execution. Two others were sentenced to 15 years.)
- Who is telling the truth about what happened when police arrested a Chicago resident for being a felon in possession? The police, who claim they calmly approached and asked whether the man had a gun, eliciting an immediate confession? Or the felon, who claims the cops ran up to him with guns drawn and patted him down before asking whether he had a gun? Seventh Circuit: We may never know, because the police allowed video of the encounter to be destroyed, but we think it was reasonable for the trial court to believe the police.
- When the feds place someone on the No Fly List (which bars the person from traveling in, to, or from U.S. airspace), must they provide an adversarial hearing where the person can challenge the allegations and evidence against them? Ninth Circuit: Maybe other plaintiffs can. But after reviewing the classified evidence that these plaintiffs (four U.S. citizens) had ties to terrorist organizations, we think the value of a live hearing is outweighed by national security interests.
- Affordable Care Act regulations require health insurance to provide free contraception. But some religions view contraception as sinful. So can the Trump administration exempt religious employers from having to pay (via insurance) for employee birth control? Ninth Circuit: Not in 13 plaintiff states. Injunction affirmed. Dissent: There's already a nationwide injunction about this from outside the circuit. So what are we doing here?
- In which a legal secretary gestures from counsel table to instruct a witness not to answer. Tenth Circuit: Bad move.
- Sixth-grade girl commits suicide, and Polk County, Fla. deputies suspect her estranged best friend of having harassed her. They enter the friend's home without a warrant and arrest her for stalking. The charge is dismissed. The friend sues the arresting officer. And her claims were rightly dismissed, holds the Eleventh Circuit: The officer had probable cause to arrest, and a jury reasonably found that he entered the friend's home with her father's consent.
- Allegation: Wildlife officers mount surveillance camera in the middle of plaintiff's hunting and fishing property, which is accessible only by crossing two other private landowners' properties and trespassing onto plaintiff's property. A Fourth Amendment violation? W.D. Tenn: "Plaintiff simply had no reasonable expectation of privacy in his open field property."
- "If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them." So writes Judge Ho of the Fifth Circuit, dissenting from denial of en banc review of a decision denying qualified immunity to Kaufman County, Tex. but granting it to officers who fatally shot a man under circumstances that remain unclear.
Across the nation, municipal governments are reaping major fines and fees revenue from minor traffic and other code violations. This is taxation by citation, and, according to a new IJ study, cities—and their residents—may pay a price for it. The report, titled The Price of Taxation by Citation, explores the phenomenon and its effects via case studies of three Georgia cities that generated double-digit shares of their revenues through code enforcement. Among other things, the report finds taxation by citation may violate citizens' rights and—not entirely surprisingly—people don't love being treated like ATMs: In all three cities, recent ticket recipients reported lower levels of trust in city government than nonrecipients. In short, what cities may gain in revenue, they may lose in community trust and cooperation. Read the report.