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.
- The Affordable Care Act expanded Medicaid availability and minimum coverage requirements but allowed states to seek exemptions for various pilot programs. Arkansas did just that, proposing a plan that would require many Medicaid recipients to work 80 hours per month, among other limitations. Feds: Waiver granted! This plan sounds like it will improve health outcomes. D.C. Circuit: Arbitrary and capricious. The plan restricts Medicaid coverage, but the purpose of Medicaid is to provide coverage. Any incidental health benefits are just a bonus.
- Owner of dilapidated Long Island, N.Y. warehouses hires "aerosol artist" to brighten the places up. What emerges is a thriving aerosol-artist community that attracts thousands of visitors and high-profile celebrities. Uh oh! The owner wants to bulldoze the place to build luxury condos. The artists sue under the Visual Artists Rights Act to protect their work. While the case is pending, the property owner whitewashes over all of it. Second Circuit: Which was a willful violation of VARA. The trial court's award of $6.75 million in damages ($150k for each of 45 eligible works) was reasonable.
- Albanian gangsters offer to provide protection to Queens, N.Y. night club owners in exchange for monthly payments. After the crew (including a now-former NYPD officer) is caught, one of the members is sentenced to 18 years. But does one of his crimes—chasing a restaurateur while brandishing a gun—count as a "crime of violence" deserving of a sentencing enhancement? Second Circuit: Yes, yes it does.
- Attala County, Miss. police find incoherent, mentally infirm man eating chicken in middle of highway. Per "local unwritten custom of ousting those perceived as vagrants from the jurisdiction," officer takes the man to the county line and drops him off along the highway at dusk. A motorist strikes and kills the man. Fifth Circuit (July 2019): Everybody knows police can't do that. The man's family can sue the officer. Fifth Circuit (same panel, Feb. 2020): Original opinion withdrawn. The officer gets qualified immunity.
- In 2019, Mississippi legislators enact "fetal heartbeat" bill, making it a crime to perform an abortion after a fetal heartbeat has been detected (which happens somewhere between 6 and 12 weeks of gestation). Fifth Circuit: We recently held that a 2018 Mississippi law that banned abortion after 15 weeks is unconstitutional. So this law must also be.
- Upon discovering that an elderly Chinese traveler is carrying $5k cash, CBP officer escorts her to secondary screening, moves her bag out of camera view, and swipes the cash. When the woman is cleared to go, she discovers her cash is missing, kicking off a frantic search. Feeling the heat, the officer sneaks the money back into an article of clothing that had just been searched, "discovering" it to the incredulity of all present. Seventh Circuit: And he waived his challenge to the $100k fine he was given. But for completeness, let's tell you about some other unsavory behavior he undertook while out on bond.
- Man convicted of Minneapolis triple murder when he was 16 is sentenced to three consecutive life sentences with the possibility of parole after 30 years (meaning that he will be in prison for at least 90 years). But wait! The Supreme Court has held that the Eighth Amendment prohibits most life-without-parole sentences against minors, and 90 years without the possibility of parole is the functional equivalent of life without parole. An unconstitutional sentence? Each 30-year sentence is constitutional, says the Eighth Circuit; the fact that he has three of them makes no difference.
- As Missouri trooper takes college student busted for boating while intoxicated ashore, the handcuffed student falls into the Lake of the Ozarks and drowns. After a prosecutor declines to charge the trooper, a police sergeant testifies about what he views as a cover-up and talks to reporters and the student's family. (The sergeant also posts allegation on Facebook that the prosecutor declined to charge the trooper in order to have the prosecutor's son exonerated in a rape investigation.) Eighth Circuit: Testifying at the legislature is protected speech, but the rest wasn't, so the sergeant's demotion doesn't violate the First Amendment. (Click here for subsequent developments in the case against the trooper.)
- Displeased with developer who failed to build promised housing on vacant 1,060-acre parcel, Hawaii land use officials revert the zoning back to agricultural use, decreasing the value of the land (according to the developer) from $40 mil to $6 mil. An unconstitutional regulatory taking? Jury: Yes! District court: The state must pay the developer $1. Ninth Circuit: The developer overestimates the diminution in value; it can probably find some use for the "barren, rocky lava flow land" that fits with the zoning. So it's not a taking, and the state can keep its dollar.
- In 2018, Florida voters approved a state constitutional amendment that automatically restored voting rights to as many as 1.4 million ex-felons who had completed their sentences. Florida Legislature: And don't forget the fines; they have to have paid all their fines, too. Eleventh Circuit: Actually, that keeps indigent people from voting just because they are indigent, which is unconstitutional. Preliminary Injunction affirmed.
- Seventy-five years ago, the Jaycees built a large cross in a Pensacola, Fla. park to be the site of Easter services, which the city now spends approximately $233 each year to maintain. An Establishment Clause violation? Eleventh Circuit: We used to think so, but SCOTUS told us we were wrong. Concurrence: SCOTUS has also said that the "psychological" harm from seeing a cross isn't enough to confer standing, yet the plaintiffs here allege only "metaphysical" and "spiritual" harm. "And can it really be that I—as a judge trained in the law rather than, say, neurology, philosophy, or theology—am charged with distinguishing between 'psychological' injury, on the one hand, and 'metaphysical' and 'spiritual' injury, on the other? Come on."
- Young immigrants who have been abused, neglected, or abandoned in their country of origin may be eligible for a special program that will allow them to stay in the U.S. After immigrant rights activists allege that the feds are ignoring that and deporting them anyways, a federal trial court issues a preliminary injunction to stop the deportations and require the gov't to alert plaintiffs' counsel within 14 days if it takes any adverse action against a class member. Surprise! The feds deport five class members, and plaintiffs' counsel only find out months later after discovering it themselves. N.D. Cal: Contemptible and contemptuous. Bring the deportees back by the end of the month or pay $500 per person per day. (via @steve_vladeck)
In 2014, officers in Grand Rapids, Mich. savagely beat a college student, James King, whom they'd mistaken for a fugitive. Rather than admit they fouled up, police and prosecutors charged James with a series of felonies, and though he was acquitted of each of them, his defense bankrupted his parents. In 2016, James sued the officers, who were members of a joint federal-state task force. But a federal judge dismissed the case, agreeing with the gov't's position that even though the officers were executing a Michigan arrest warrant against a Michigan resident for a crime committed in Michigan (there was no federal crime), they had not abused their state powers because they were acting under color of federal law. Moreover, their abuses of federal law were shielded by qualified immunity. And, because the state provided the federal gov't immunity, the gov't could not be held liable either. Last year, the Sixth Circuit reversed the worst aspects of the district court's ruling and allowed the case to proceed, but the officers have appealed to the Supreme Court. Now represented by IJ, James is asking the Court to put a stop to the immunity shell game that shields task forces from accountability. The Washington Post has the story.