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.
Cert petition: In 2015, DEA agents got a bad tip and raided Miladis Salgado's Miami home, seizing $15k in cash and forcing her to cancel her daughter's quinceañera. Though the DEA admitted there was zero evidence linking the money or Ms. Salgado to any crime, it fought her efforts to get the money back for two years before finally relenting. But Ms. Salgado hasn't been made whole. Last year, the Eleventh Circuit ruled that because the gov't dropped the forfeiture action right before the court could rule on the merits, Ms. Salgado did not "substantially prevail" and thus she was not entitled to attorney's fees—meaning a third of the cash will go to her attorney. Now, Ms. Salgado and IJ are asking the Supreme Court to step in and apply the statute's plain text mandating an award of fees instead of the judicially created "get out of jail free" card for civil forfeiture abuse. The South Florida Sun Sentinel has more.
- Part-time adjunct faculty at Duquesne University attempt to unionize, and the NLRB declares the United Steel, Paper and Forestry, Rubber, Manufacturing, Allied-Industrial and Service Workers International Union as their exclusive bargaining unit, presumably because adjuncts grade papers (NB: Your editor does not understand labor law). Duquesne, a "Catholic University in the Spiritan Tradition," refuses to bargain with the union. An unfair labor practice? D.C. Circuit: Nope, the NLRB lacks jurisdiction over disputes between religiously affiliated nonprofit schools and their faculty. Dissent: Maybe if the adjuncts were fulfilling a religious role, but a categorical exemption sweeps too broadly.
- Under the Violence Against Women Act, aliens who are subject to removal can seek cancellation of removal if they are victims of domestic violence by a U.S. citizen spouse. To be eligible, the person seeking cancellation cannot have a criminal conviction unless the crime was connected to the alien's having been abused or subject to extreme cruelty. Is the statute broad enough to cover punching your husband's mistress in the nose? Third Circuit: In this case, the husband's repeated adultery was part of the extreme cruelty, and socking the mistress was connected to it. Removal canceled.
- Getaway driver for a string of five robberies is convicted of five counts of "aiding and abetting the use of a firearm during and in relation to a crime of violence" and one count of being a felon in possession, is sentenced to 124.5 years in prison (his co-defendant in the robberies, by contrast, has already completed his sentence). Defying all odds, he convinces the Supreme Court to vacate his sentence not once, but twice, requiring the Sixth Circuit to reconsider his sentence. Sixth Circuit: We got it right the first two times. An intervening change in the law that would have reduced his firearm charges to 35 years instead of 107 doesn't apply retrospectively.
- The Speedy Trial Act requires the government to try a criminal defendant within 70 days or the case will be dismissed. All that's required is that a defendant make a motion after the 70 days expire. Defendant: I objected after 86 days! Sixth Circuit: That's 86 calendar days. But 18 of those days don't count under the statute, so your objection was two days too early and the conviction stands. Concurrence: Besides that, merely objecting isn't enough; you have to file a motion to dismiss (or at least you did until our Circuit rewrote the statute).
- Off-duty Kane County, Ill. deputy attends his child's soccer game in neighboring DuPage County. Displeased with off-color language being bandied about on a nearby basketball court, the deputy confronts teenage basketballers, flashes his badge and gun, then physically assaults one of the players. Player wins a $110k default judgment against the deputy. Which cannot be collected from his Kane County employer, affirms the Seventh Circuit. "The fact that [the deputy] used his badge, gun, and training in an unauthorized manner in pursuit of that purely personal goal does not bring his conduct within the scope of his employment."
- Do Illinois state courts provide an adequate forum for adjudicating taxpayers' Equal Protection claims? Seventh Circuit: Everyone agrees the taxpayers cannot raise their Equal Protection claims in state court. So no.
- Merrill, Wisc. man is caught with 143 kilos of marijuana, pleads guilty to possessing over 100 kilos. Yikes! He's sentenced as if he possessed the equivalent of 4,679 kilos. Seventh Circuit: That finding rested on potentially unreliable statements by confidential informants. The trial court should have taken steps to determine whether the CIs were reliable. Eighteen-year sentence reversed and case remanded for resentencing.
- Arkansas prohibits anyone from donating money to a candidate running for state office more than two years before the election. Does the "blackout period" violate the First Amendment? Eighth Circuit: The preliminary injunction is upheld, and plaintiff can donate money while the case is pending.
- Arizona has a policy of wholly discarding ballots that are cast in the wrong precinct, rather than counting or partially counting those ballots. Arizona has also made it a crime to collect and deliver another person's ballot. Violations of the Voting Rights Act? Ninth Circuit (en banc): Absolutely. The former has a discriminatory impact, and the latter was enacted with discriminatory intent. Dissents: It's not unreasonable to regulate where voters can cast their ballots or who may handle absentee ballots.
- Arizona corrections officials settle health care class action, agree to comply with 103 "performance measures" designed to improve things. Was a district court justified in imposing contempt sanctions on the dep't of corrections of $1k per incident of noncompliance? It was, says the Ninth Circuit. And with 1,445 such incidents (not to mention attorney's fees), that's a hefty chunk of change.
- Responding to a report of a domestic dispute, Sonoma County, Calif. deputies barge into man's bedroom and find him alone, in bed, on his cell phone. Man declines to stand up and says he's calling his lawyer. Deputy responds by tasing him in the chest. Ninth Circuit: No qualified immunity for the tasing deputy.
- Septuagenarian has a favorite fly fishing spot in the Arkansas River. Yikes! Nearby Cotopaxi, Colo. homeowners believe he's trespassing on their property, which runs up to the centerline of the riverbed. Fisherman: The land is public land because it was navigable at Colorado's statehood, which we know thanks to an early 19th-century beaver trapper and other accounts of commercial use from the time. Trial court: The fisherman doesn't have standing. Tenth Circuit (over a dissent): Try again. (Click here for some local journalism.)
- And in en banc news, the Fifth Circuit (by an 8–8 vote) will not reconsider its decision allowing a Baton Rouge, La. police officer's suit to proceed against a protest organizer. (The cert petition remains pending.) Nor will the Fifth Circuit revisit its decision deeming the individual mandate not a tax (on account of the tax being zero) and thus not a constitutional exercise of Congress' taxing powers. (Relatedly, SCOTUS will not hustle along its consideration of the cert petitions.) Meanwhile, the Ninth Circuit will not reconsider its decision affirming the suppression of evidence on Crow land from a man an officer deemed non-Indian due to his physical appearance. A dissent castigates the decision, and a concurrence castigates the dissent. Spicy!
- And in Ohio Supreme Court action, a one-sentence, 307-word dissent: "I join Justice Lanzinger's well-reasoned dissent, but write separately to highlight the General Assembly's failure in legislative drafting exemplified by former R.C. 2929.14(D)(3), which the majority opinion relegates to a footnote to fully accommodate its 24 lines of unrelenting abstruseness consisting, remarkably, of the sum total of 307 words and a mere one period, a punctuation mark set out as a lone sentinel facing odds similar to that of the Spartans at the Battle of Thermopylae, a battle that occurred over the course of three days during the second Persian invasion of Greece, and is estimated by historians to have occurred in either August or September, or perhaps both, in 480 B.C., pitting an alliance of Greek city-states, led by King Leonidas of Sparta, against the Persian Empire of Xerxes I, bravely standing before the onslaught of invaders but ultimately unable to stanch the unrelenting tide of the overpowering hordes of words and statutory numbers including R.C. 2903.01, 2907.02, 2903.02, 2925.04, 2925.11, 2925.02, 2925.06, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, 4729.61, 3719.172, 4729.51, 4729.54, 2941.1410, 2929.20, without so much as a helping hand from a single, solitary semicolon, colon, or parenthesis, other than the parentheses surrounding the capital letters denoting the divisions of statutory sections that are sprinkled throughout the statute, a statute that purports to inform the citizenry of the potential penalty for certain enumerated criminal acts, but by cramming so many words about sentencing into one sentence, sentences itself to uselessness, especially in the case of an offender involved in a pattern of corrupt activity, regarding which R.C. 2929.14(D)(3) surprisingly is completely without specificity, in that it fails to cite a statutory section outlining what constitutes corrupt activity when it otherwise lists specific statutory sections relating to all the other offenses to which it applies, a statutory circumstance up with which we should not put." (H/t: @Nonfinality)
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