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.
After Muhammad Tanvir declined the FBI's requests to spy on fellow Muslims, the feds (among other threatening and harassing behavior) put him on the No-Fly List for several years, which cost him his job and prevented him from visiting his family in Pakistan. He sued, and on the eve of an important hearing, the gov't removed him from the list. Next month, the Supreme Court will consider whether Tanvir can sue for monetary damages under the Religious Freedom Restoration Act or if—as the gov't claims—once the gov't ceases its unlawful conduct, there is no longer a legal remedy. In an amicus brief filed this week, IJ urges the Court to allow damages and examines the role that damages have played since the Founding in ensuring federal officials are not above the law.
- Allegation: In disclosure statements required by federal law, President Trump not only disclosed debts he is personally liable for but also corporate debts he is not personally liable for, which obscures the information meant to be disclosed and frustrates the intent of the law. D.C. Circuit: It does seem like there is "potential for mischief," but that's for Congress, not the courts, to address.
- Man defies court order, declines to decrypt hard drive that almost certainly contains a trove of child porn. He's imprisoned for four years for civil contempt. Third Circuit: 18 months is the max courts can confine witnesses involved in court proceedings. Dissent: He's not a witness and there is no proceeding, just an investigation. Concurrence: The gov't has more than enough evidence already to send him away for a long time. Why is it even pursuing this?
- Using publicly available descriptions of property boundaries, startup company draws lines on satellite photos, which helps its customers, community banks, visualize their property assets and identify issues (such as a property's legal description not describing a completed shape). Mississippi regulators: That is the unlicensed practice of surveying, a civil and criminal offense. Fifth Circuit: There is no occupational speech exception to the First Amendment. The startup's challenge should not have been dismissed. (This is an IJ case.)
- Allegation: Without provocation, guard pepper sprays Texas inmate. Fifth Circuit: Which violates the Eighth Amendment, but the inmate's suit can't proceed because this wasn't clearly established by prior case law. Partial dissent: "How could any guard not know that an unprovoked use of pepper spray is unlawful?"
- Mississippi nonagenarian's dog, Max, runs away from home while emergency responders transport his doggy dad to the hospital after a fall. The good news: Max is recovered while his owner is hospitalized for several weeks recovering from surgery. The bad news: The city won't give the dog back because his owner (who received no notice that Max had been found) didn't claim him within three days of his being taken to the pound. The owner sues to get Max back but, sadly, dies while the case is still pending. Fifth Circuit: Yet his claims survive, and the district court needs to take a closer look at whether the city's seizure and retention of Max violated due process.
- Busted for selling contraband candy, 12-year-old Mississippi boy has his pockets searched by an assistant principal. His mom sues, claiming that the assistant principal grabbed her son's genitals. When the undisputed record proves the mom's account false, the trial court grants qualified immunity. Fifth Circuit: And it is "patently obvious" that this was the correct outcome. Footnote: If Judge Ho had his druthers, he'd demand that the mom's lawyer explain why this frivolous appeal isn't sanctionable, why her briefs are filled with misspellings and grammatical errors, and why she felt the need to intimate that the assistant principal might be gay.
- Allegation: Without a warrant, up to eight Lincoln Park, Mich. officers barge into home of man wrongly suspected of shooting a cat. Though the man is unarmed and compliant, an officer slams him into a cupboard. (He's cuffed painfully, strip searched, and then released three hours later.) District court: Qualified immunity for officer who slammed him. Sixth Circuit: Reversed.
- Allegation: Following surgery to deal with aggressive prostate cancer, Wisconsin prisoner experiences erectile dysfunction. But prison officials decline to provide surgeon-recommended medication. ("To be clear, the purpose of this recommendation was to preserve [his] long‐term erectile function, as opposed to facilitating any sexual activity while [he] remained incarcerated.") Seventh Circuit: The district court abused its discretion by not allowing the man to amend his complaint to name the proper official.
- Man convicted of 1989 Cheyenne, Wyo. burglary and rape unsuccessfully sues the city and police officers in 1991 and 1992. The man is exonerated by DNA evidence and released after 24 years in prison. He sues the city and the officers again in 2017. Do the prior judgments in favor of the city and officers preclude the new suit? The Tenth Circuit says maybe not. The district court needs to take another look.
- Allegation: While incarcerated at the Denver Women's Correctional Center, female inmate was repeatedly groped, subjected to very R-rated sexual comments, and otherwise sexually harassed by male guard. Guard: Who could have known that such behavior toward a prisoner was unconstitutional? Not me. Tenth Circuit: Yes you. Qualified immunity denied.
- McDonough, Ga. municipal court sentences woman to 60 days in jail for failing to pay fine without holding a hearing to determine whether her failure to pay was willful. Can she sue the city? Eleventh Circuit: No, the court was enforcing a state law (against driving while uninsured), not a local ordinance. Judge Jordan, concurring (and citing an IJ study): "Jailing a defendant for failing to pay a fine—without any determination that her failure to pay was willful—is a flagrant violation of the U.S. Constitution."
- In this Zen koan of a case, the Eleventh Circuit holds that a quasi-governmental agency attempting to collect a nonexistent debt is not a "debt collector" because the attempted collection of the (again, nonexistent) debt was incidental to the agency's "bona fide fiduciary obligation" to collect debts. Dissent: Even if collecting nonexistent debt fell within the fiduciary obligation exception to the Fair Debt Collection Practices Act, the plaintiff has plausibly alleged that the agency acted in bad faith.
- Black male disembarks the Chinatown bus in Columbia, S.C., where he is soon approached by DEA agents who just want to have a friendly chat about his trip, the weather, and—oh, by the way—whether he is carrying any illegal weapons. After the man suspiciously answers "no" and, allegedly, touches his shirt and waistband, an agent frisks him for weapons. The agent finds none but feels a lump that his "training and experience" tell him just has to be crack cocaine. It is, and the suspect, on his third strike, is sentenced to 30 years in prison. But was the search unlawful? South Carolina Supreme Court: Not at all. Any black man in the defendant's position would have felt free to walk away from this encounter. Dissent: Have you guys been watching the news? (via @PoliceLawProf)
- And in en banc news, the Ninth Circuit—over the votes of 10 dissenting judges—will not rehear its earlier ruling that a prison's failure to provide gender confirmation surgery to a transgender inmate who had twice attempted self-castration violated the Eighth Amendment. The Second Circuit, however, will reconsider its holding that a landlord can be held liable for tenant-on-tenant harassment under the Fair Housing Act.
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