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.
New on the Short Circuit podcast: A special live episode at University of Georgia Law featuring Prof. Michael Wells of UGA, Prof. Eric Segall of Georgia State, and Andrew Fleischman of Ross & Pines. Thanks to FedSoc and ACS for sponsoring the event!
- Washington, D.C. wine bar that hosts private events for international delegations and domestic public interest groups sues President Trump, alleging that he and the Trump International Hotel engaged in unfair competition by using the perception that, by patronizing the hotel, lobbyists and diplomats would ingratiate themselves to the president. The president removes the case to federal court, where it is dismissed for failure to state a claim: D.C. Circuit: Which was the correct result. Merely having a famous proprietor is not unfair competition. (No word on how control of the world's most powerful military should weigh into the analysis.)
- In a short opinion, the Second Circuit politely reminds district courts that they really oughtn't dismiss cases under the Rooker-Feldman doctrine anymore.
- Drug dog alerts to package arriving in the U.S. Virgin Islands. Turns out there are no drugs, but there are gun parts and ammunition. A search of another package from the same sender turns up similar contraband, leading to the sender's arrest for illegal transport of a firearm. Defendant: They're the U.S. Virgin Islands, so the border exception to the warrant requirement doesn't apply. The evidence should be thrown out. Third Circuit: There are different kinds of borders, and although the Virgin Islands are a U.S. territory, Congress has established a customs border between them and the mainland, so the evidence stays in.
- In a short opinion, the Sixth Circuit also politely reminds district courts that they really oughtn't dismiss cases under the Rooker-Feldman doctrine anymore. Judge Sutton concurs to politely remind district courts that, for the love of all that is holy, they need to knock this off already.
- Nashville, Tenn. officer, responding to an alarm at a night club, arrests man outside, declines to investigate man's story that he spent the night working in the club and his belongings are locked inside. (Criminal charges are dropped.) A Fourth Amendment violation? Although the officer was "either mentally deficient or dishonest" during deposition, the district court grants the officer qualified immunity. But the Sixth Circuit reverses, explaining that the officer's refusal to consider the circumstances was the "antithesis of probable cause." But the dissent argues that the officer should be forgiven because it was late at night and cold outside; it's the club manager who's to blame.
- Battle Creek, Mich. officer, responding to reports of an armed man at a drive-thru liquor store, finds a teenage boy armed with a black BB gun. In a two-second flurry, the boy discards the gun and the officer shoots the boy. The precise sequence of events is disputed. Sixth Circuit: Because everything happened so quickly, the officer gets qualified immunity. Dissent: "It should go without saying that reasonable police officers do not shoot disarmed young boys with upraised hands."
- After three and a half years of litigation and more than a thousand docket entries in this protracted attorneys' fees dispute, the Seventh Circuit delivers a well-deserved bench slap to the opposing counsel from hell (who still walks away from it all with $800,000 in attorney's fees).
- Eight years after the death of his wife, Illinois criminal defense lawyer is charged with her murder. After two trials, he is finally acquitted in March 2017. Shortly thereafter he sues the police, the coroner, and others, alleging they had framed him. Must the judge recuse herself because her daughter is an attorney at the Exoneration Project, a group funded by the lawyer's lawyers? Seventh Circuit: No, the daughter has been screened off from the case. Her merely being related to the judge isn't enough to merit recusal, nor is the judge's previous attendance at an Innocence Project fundraising dinner at which the plaintiff and other exonerees were honored.
- After a Dallas, Ore. school district adopts a new policy allowing a transgender male high school student to use boys' bathrooms and locker rooms, the parents of students who feel uncomfortable changing clothes in front of someone born biologically female sue, alleging a host of constitutional objections, along with a Title IX claim. Ninth Circuit: We recognize the sensitivities of all involved, but the claims fail.
- After YouTube restricts access to and demonetizes educational videos by conservative group Prager University, PragerU sues, alleging that YouTube violated the group's First Amendment rights and violated the Lanham Act by falsely advertising that it is committed to free speech. Ninth Circuit: Friendly reminder that the First Amendment restricts only government action. YouTube may be a virtual public square, but that doesn't make it a state actor. As for YouTube's "braggadocio" about its commitment to free speech, that's all nonactionable puffery.
- After pulling a woman over for a busted taillight, LAPD officers arrest her for an outstanding warrant. She informs them that, due to a shoulder injury, she cannot place her hands behind her back. They ignore this and her cries of pain, handcuff her behind her back. Excessive force? District court: Qualified immunity—no case says cops can't do that. Ninth Circuit: Uh, no. We've said for more than 20 years that cops can't handcuff a suspect in a way to cause pain if there's no immediate threat. Might've violated the Americans with Disabilities Act, too.
- Allegation: A week prior to teen's homicide trial, Hobbs, N.M. auto shop owner produces invoice showing that the car police suspected was used in drive-by shooting was in fact in the repair shop—something police could easily have verified the day after the shooting, nine months earlier. Police obtain a warrant for business records related to repair of the car and enter the owner's residence (which is on the same property as the shop) with guns drawn, seize all electronic devices. An unreasonable search and seizure? Retaliation for producing exculpatory evidence? District court: Can't sue over that. Tenth Circuit: Can't sue over that.
- Wichita, Kan. police shoot and kill an unarmed man as he walks to a parking garage after last call. Police say the man had a gun, and they saw him shoot it. Everyone else says he didn't and, therefore, couldn't. Medical experts say the police shot that man at least three times while he was lying face down on the ground. Tenth Circuit: The officers are entitled to qualified immunity for (1) shooting an unarmed man and (2) failing to warn him before they opened fired. But no qualified immunity for (3) shooting while the man posed no threat, lying on the ground. Dissent: "The Constitution clearly prohibited both officers from shooting an unarmed individual posing no threat to anyone."
- When a quinquagenarian detainee at Cobb County, Ga. jail politely asks a guard to make a phone call, the guard shoves the detainee to the concrete floor, breaking his hip. Then, as the man howls in pain, the guard tries to drag him to his feet and berates him. This being the twelfth time the guard had been investigated for violating jail policies and the sixth time he was found to have violated them, he's fired. Eleventh Circuit: The detainee can sue the (now-ex) guard. Partial dissent: He should be able to sue the supervisors, too.
- In 2016, railroad asks the feds for permission to convert a 1.2-mile stretch of track in Miami into a recreational trail. Abutting landowners: Whoa, the railroad got permission (in 1924) to conduct trains through our backyards. If they want to use the land for something else, the gov't must pay just compensation. Federal Circuit: Florida law does indeed give landowners bordering railroads an ownership interest up to the center line of the right of way. (N.B.: We have it on good authority that nearly every other state has a similar law.) The suit should not have been dismissed.
When the port district officials in Louisiana condemned Violet Dock Port's port business, the company was awarded almost $30 mil in just compensation after a trial. The port district took the property (and continues running the port business at a profit), but there's a twist! Despite the judgment, the district says it doesn't want to pay anything for the property and nobody can make it. Which, argues the Institute for Justice in this amicus brief filed with the Fifth Circuit, is only half right.