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.
Attention Minnesota lawyers: You should come to IJ's forum on the state constitution on Thursday, February 20, 2020 at St. Thomas Law. Justice Barry Anderson will give the keynote. Three hours of free CLE credit! Plus you will hear from luminaries like Professor Mary Jane Morrison (who literally wrote the book on the Minnesota Constitution) and retired Judge Jack Nordby. Click here to learn more and RSVP.
New on the podcast: Black Lives Matter, a qualified immunity cert petition (Kelsay v. Ernst), and a Judge Easterbrook bench slap. Featuring special guest Marisa Maleck of King & Spalding. Click here for Apple Podcasts.
- Has President Trump accepted foreign emoluments (by way of his financial interests in businesses that do business with foreign governments) in violation of the Constitution? The 215 members of Congress who seek to press that case do not have standing, says the D.C. Circuit. Indeed, "their alleged injury is shared by the 320 members of the Congress who did not join the lawsuit—and their claim is based entirely on the loss of political power."
- Harvard denies tenure to anthropology professor, claiming she's insufficiently published and not a "first rank" scholar. Professor: I was denied because of my gender and as retaliation for my speaking out on behalf of survivors of sexual misconduct on campus. In a 73-page decision, the First Circuit finds the evidence doesn't support the professor's arguments. Not even the department adviser who told the professor to be a "dutiful daughter" (one who didn't complain about gender disparities in course load) to succeed, as that was years before the tenure decision was made and wasn't enough to meet the discriminatory burden. (She is now a tenured professor at Tufts.)
- The city of Philadelphia bars employers from inquiring about a prospective employee's wage history in setting or negotiating that employee's wage. District Court: Which violates the First Amendment, at least as to making the inquiry. Preliminary injunction granted. Third Circuit: Nope. This case involves only commercial speech, which gets less protection, and the city put forward a ton of evidence to support this policy.
- Franklin County, Ohio officer has a fractious relationship with the mother of his children, engendering several domestic violence complaints. In responding, police discover that the mother is a registered sex offender. The officer is fired. Officer: You fired me because I associated with the mother of my children, which is an intimate relationship protected by the First and Fourteenth Amendment. Sixth Circuit: Associating with her to co-parent is one thing, but you were fired because you participated in a violent altercation. That's not constitutionally protected.
- Millington, Tenn. reserve police officer holds himself out as a grandfather figure, befriends families, sexually abuses the children. (He's sentenced to 26 years in prison.) Parents of four of the victims sue the city, three of its chiefs of police, and three of its mayors—they should've done more to prevent this. Sixth Circuit: Claims against two of the chiefs of police can go forward, as they allegedly received multiple reports of the officer's gross behavior and didn't do anything about it.
- Michigan inmates who seek to abide by dictates of "Christian Identity" religion, which require adherents to remain separate from non-white people while they worship (and at other times), sue prison for (among other things) failing to allow them to worship separately from other religious groups. District court: Which does not violate the Religious Land Use and Institutionalized Persons Act. Sixth Circuit: Reversed. On remand, the prison needs to explain why it can't accommodate their religious practices.
- Seventh Circuit (Judge Wood, in chambers): I would kindly appreciate it if you would all start reading our @#$%ing rules and procedures.
- Allegation: Police officer defenestrates man from third story of Chicago building and, to cover up this misconduct, frames the man for gun possession, which leads to eight-year sentence. The conviction is eventually reversed, and the man reaches a settlement with the city over his excessive force claims. Seventh Circuit: And the settlement agreement prevents him from suing several other officers who allegedly assisted with the cover-up.
- Septuagenarian shoots .30-30 rifle at helicopter flying low over his Clearwater County, Minn. property. Yikes! It's the feds having a look at his marijuana grow. He's sentenced to five years. Eighth Circuit: No need to revise the $20k restitution order to pay for damage to the helicopter.
- Students sue the University of California system under Title IX, alleging that UC's handling of their individual sexual assault claims and its general policy of deliberate indifference to sexual misconduct created a hostile learning environment. Ninth Circuit: Your individual claims all fail, but the way UC handles these claims does seem pretty messed up and designed to evade statutory disclosure requirements, so that claim can go forward.
- Allegation: Male corrections officer at Kern County, Calif. juvenile facility repeatedly watches female ward shower, recounts a sexual dream about her, touches her face and shoulders without consent, and tells her that she should leave her boyfriend and "find someone better like him." Ninth Circuit: No qualified immunity for Officer Creepy McGrabbyhands.
- Allegation: When Tacoma, Wash. police tried to pull over motorist for driving without his headlights on, he led them on a low-speed pursuit to his apartment so that his wife would have the car for work. While the motorist is driving slowly in the parking lot, a police officer runs up to the car, shoots through the passenger window, hitting the motorist in the spine and rendering him paraplegic. Officer: That's not how it happened! He was speeding toward me! Ninth Circuit: You will have a full and fair opportunity to prove that at trial. No qualified immunity.
- Ninth Circuit: It was unreasonable for the district court to "mechanical[ly]" reduce an attorneys' fee award by 90% just because the plaintiff settled for 10% of the amount he originally sought. The judge needs to give a better explanation. Dissent: Our case law on this is inscrutable, the judge did a good job navigating it, and you're just making more work for trial court judges.
- "For more than fifty years, private parties have sued states and localities under the [Voting Rights Act] to enforce the substantive guarantees of the Civil War Amendments." Alabama: It must never have occurred to any of those other states that such lawsuits are barred by sovereign immunity. Eleventh Circuit: The VRA abrogates state sovereign immunity. Dissent: But it doesn't clearly abrogate sovereign immunity.
- Volunteers with No More Deaths/No Más Muertes—a faith-based organization that leaves food, water, and medical supplies in the desert for migrants crossing the border—are charged with entering a wildlife refuge without a permit and abandoning property. A federal magistrate judge convicts them on all counts. D. Arizona: Not so fast! The law burdens their sincere exercise of religion, which triggers the Religious Freedom Restoration Act. Even if the feds have a compelling interest in "preventing Defendants from interfering with a border enforcement strategy of deterrence by death," there are less restrictive ways to go about it. (via @ASFleischman)
Last summer, Melisa Ingram lent her car to her then-boyfriend so he could drive to a barbecue. Later that day, Wayne County, Mich. officers pulled him over for slowing down in an area known for prostitution. He was never charged with a crime, but the officers seized the car and prosecutors refused to release it unless Melisa paid $1,800 plus towing and storage fees. She didn't have the money and ended up losing the car, which has imposed severe financial hardship. "Detroit's forfeiture program is less like a justice system and more like having your car stolen and paying a ransom to get it back," says IJ Senior Attorney Wesley Hottot. "Once police seize a car, there is no judge or jury. Instead, prosecutors give owners a choice. They can either pay the city's ransom or hire an attorney and enter a byzantine process that is confusing, time-consuming, and expensive. The process is designed to ensure that owners fail nearly every time. I've watched this happen time and time again, and never once have I seen an owner successfully make it to court and get his or her car back." This week, IJ filed a class action over Detroit and Wayne County's unconstitutional civil forfeiture program.