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.
- Between 2004 and 2013, Massachusetts drug lab chemist became heavily addicted to basically everything under the sun, stealing laboratory standard samples and evidence submitted for testing, and using drugs at work on a daily basis. After this came to light, more than 11,000 convictions based on her testing were dismissed. Allegation: I'm one of those guys, and this never would have happened if her supervisor had done his job, like following up when he discovered that tons of standard samples were missing. First Circuit: Qualified immunity.
- Jury nullification—in which jurors vote against convicting a criminal defendant if they deem the law in question unjust—predates the Battle of Runnymede (see page 13), is perfectly legal, and is a thorn in the side of prosecutors. But, per the Second Circuit, courts may not encourage nullification, which means a defendant may not argue for it. This despite an amicus from the district court judge who allowed it below.
- Perhaps you've listened to last week's three-minute oral argument (regarding the constitutionality of sponsor requirements for bar applicants) that culminated in an attorney being escorted out by security. Well, the Second Circuit quickly turned around its decision, and the attorney did not prevail. (The district court's decision is a bit more thorough.)
- Immigrant renounces gang life in prison, says he will face torture, murder if he's deported back to El Salvador. Immigration court: Too bad. You committed an aggravated felony. Third Circuit: Point of fact, he did not. More egregiously, though, the immigration court ignored precedent and applied incorrect standards. Judge McKee (concurring, with the rest of the panel): Indeed, the court was more focused on ensuring he is deported rather than acting "as the neutral and fair tribunal it is expected to be."
- Allegation: The methods and means that will be used to conduct the 2020 census will lead to the undercounting of minorities, which violates the Enumeration Clause. District Court: You cannot know that till after the census, so this is not a ripe claim. Fourth Circuit: The methods and means are part of the final "Operation Plan" of the Census Bureau and delayed adjudication will harm the plaintiffs, so their claim is ripe.
- Fifth Circuit: When is a tax not a tax? When—like the ACA's penalty for failure to buy health insurance—the tax rate gets lowered 0%. And if something ceases to be a tax, it can't very well be a constitutional exercise of the taxing power, now can it? As for what this means for the rest of Obamacare, we'll let the district court take the first crack at that. Dissent: If people who buy insurance pay $0 in penalties, and people who don't buy insurance pay $0 in penalties, where's the injury needed for standing?
- At a 2016 Baton Rouge, La. protest against police brutality, an unidentified person lobs a heavy object that knocks out a cop's teeth, causes facial and brain injuries. The officer sues, among other things, the hashtag #BlackLivesMatters. District court: That is not an entity one can sue. Fifth Circuit (April): But the officer can sue a protest leader for negligently organizing a foreseeably violent protest. Fifth Circuit (August): The officer's suit can still proceed, but here's more First Amendment analysis. Fifth Circuit (December): The suit can still proceed, but one judge has had a change of heart and now dissents. (A cert petition is pending.)
- In 2018, Mississippi passes a law that essentially banned abortion after 15 weeks' gestational age. Fifth Circuit: Yeah, that's obviously foreclosed by Supreme Court precedent. Concurrence (Judge Ho): I'm compelled to agree, but a district court crosses the line when it calls the state's interest in women's health "pure gaslighting," "equates a belief in the sanctity of life with sexism," and "smears Mississippi legislators by linking [the law] to the state's tragic history of race relations, while ignoring abortion's own checkered racial past."
- Like most states, Illinois has limits on political contributions. But in an unusual twist, if a candidate self-funds more than $250,000 in a statewide race, or $100,000 in any other race, or if an independent-expenditure group or individual spends more than those limits, Illinois law removes all contribution limits in that race, including for corporations and unions. Liberty Principles PAC: But not independent-expenditure groups like us, who have a $0 contribution limit. That sure seems like it should violate the First Amendment. Seventh Circuit: Nope. If a candidate receives a million dollars from Exxon or the AFL-CIO, that's one thing. But if that candidate gets money from an independent-expenditure group—which is required to disclose donors at the same threshold as PACs that are allowed to make unlimited contributions—that might look shady.
- Religious high school installs $235k in lights on their baseball field after getting the OK from Kirkwood, Mo. city planner. Oopsie! The city planner mistakenly thought the field already had lights and that the new lights were grandfathered in. After neighbors complain, the city approves the use of lights subject to conditions that make them essentially unusable. The school sues. Eighth Circuit: Having to play baseball during the day may be inconvenient, but it does not substantially burden any religious exercise. However, the state's religious freedom law is a bit of a mystery, so we'll let you refile that claim in state court.
- Prison Legal News, a monthly magazine that helps inmates navigate the criminal justice system, has subscribers at a Colorado "Supermax" prison that houses Ted Kaczynski, Dzhokhar Tsarnaev, Eric Rudolph, and a host of other baddies. Between 2010 and 2014, prison officials reject the distribution of 11 issues of the magazine that contain information on the prison's inmates or staff. PLN files suit. Officials (eventually): We've distributed the issues, officially changed our policy, and sworn under oath that this won't happen again. Tenth Circuit: And when the gov't takes steps like that—which we outline in a neat chart on page 11—your case is moot.
- A reminder from the Tenth Circuit: Even if Tulsa, Okla. police allegedly coerce you into a false confession, you will lose your lawsuit if you do not properly cite the record. "[Plaintiff's] error wasn't merely technical. The district court might have discovered the pertinent part of the testimony only by trudging without guidance through 1540 pages of exhibits."
- California cannabis grower is now locked up in Colorado, as peddling pot, though legal in California, is still illegal under federal law. The grower: But Congress banned the feds from spending money to enforce marijuana laws when it's state-legal. Which means the feds can't pay to keep me in prison. Tenth Circuit: You can make that case to a federal court in Colorado. No need to go back to California (as the district court found).
- In 2016, Birmingham, Ala. officials enact a $10.10 minimum wage, but the next day state legislators preempt it, effectively enacting a statewide minimum wage of $7.25. Plaintiffs: Which discriminates against African-Americans, who make up 73 percent of Birmingham and most of its city council. Eleventh Circuit (2018): A reasonable argument, racist laws don't really announce a racist purpose anymore. Eleventh Circuit (en banc, over a dissent): Plaintiffs don't have standing to sue the attorney general; case dismissed. Also, some advice: Sue the companies not paying you $10.10, not the gov't.
- Man records a court proceeding on his phone, for which he is convicted of contempt. North Carolina appeals court: Conviction and sentence affirmed. The man must write a 2,000–3,000 word essay on why "respect for the court system is essential to the fair administration of justice," post the essay on social media, and delete all negative comments. Partial dissent (who was once a guest on the podcast): He shouldn't have to monitor the comments.
- Note to gov't attorneys: If you're litigating a case in which the you bear the burden of proof, don't flagrantly violate the pretrial disclosure rules, because you may end up having all of your evidence excluded and the law you're defending will be struck down. In related news, the Tennessee Court of Appeals affirmed a trial court ruling striking down two campaign finance laws that imposed a yearly fee on nonpartisan PACs and prohibited nonpartisan PACs from making contributions in the 10 days before an election, but that imposed no such restrictions on party committees, because the government had no evidence to present.
- Are people born in American Samoa entitled to birthright citizenship under the Fourteenth Amendment? District of Utah: Hmm. I have to choose between an 1898 case about the Fourteenth Amendment that suggests yes, and a super-racist line of non-Fourteenth Amendment cases that suggest no. After an interesting look at the history of birthright citizenship, I'm going with yes.
- And in en banc news, the Sixth Circuit will reconsider its decision enjoining an Ohio law that bars doctors from providing abortions when they know the woman's reason is because the baby has Down syndrome.
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