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: double jeopardy, the Air Force's effective ban on deploying HIV-positive airmen, and the federal gov't's prosecution of volunteers who left food and water in the desert for migrants.
- Should the House Judiciary Committee have access to grand jury material from the Mueller investigation? D.C. Circuit: Indeed they should; grand jury records are court records, not executive branch records, and the district court did not abuse its discretion in ordering their release. Dissent: Courts may have the power to authorize the release of these documents, but they can't order the executive branch to turn them over. Concurrence: Grand jury materials "do not become executive records simply because the Department of Justice stores them in file cabinets."
- Inmate in a West Virginia prison is shanked in the dining hall with a screwdriver, files a FOIA request for video of the attack. Prison: Nope, that may unnecessarily intrude on the privacy of the other inmates who appear in the video. D.C. Circuit: The 70 inmates who were required to be in the lunchroom and who can be seen . . . eating lunch? We're dubious. In any event, if today's youths can make themselves look like cats on the Snapchats, it's not clear why the Bureau of Prisons can't blur out the other prisoners' faces.
- In 2015, the Federal Aviation Administration changes various flight paths into and out of Reagan Nat'l Airport. Displeased with the resulting aircraft noise, the state of Maryland sues in 2018. FAA: Too late! The deadline for suing was 60 days after we published the new flight paths. Maryland: The FAA strung us along from 2015 to 2018, so our delay was excusable. D.C. Circuit: The FAA's behavior was "hardly a model of sound agency practice," but (to mix transportation metaphors) the train had long since left the station by the time Maryland filed suit. Case dismissed as untimely.
- Under federal sentencing guidelines, certain prior offenses cannot be counted in the calculation of an individual's criminal history score. One of these is loitering. But there are all kinds of loitering statutes. What's a court to do? Third Circuit: Depends on whether it's "loitering simpliciter" or "loitering plus," which is judge-talk for whether or not the loiterer was being sneaky about it.
- The city of Baltimore sues oil and gas producers in Maryland state court, alleging that climate change is hurting the city. Chevron: And we would like for this case to be heard in federal court. District court: Nope, remanded back to state court. Fourth Circuit: We barely have jurisdiction to review this, but we agree on the tiny part we're allowed to review.
- Defendant eligible for resentencing under the First Step Act after serving 15 years says the district court should have resentenced him to only 10 years to allow him to "bank" the extra time against future terms of incarceration. Which, the Fourth Circuit says, is absolutely not a thing the district court had to do.
- Bexar County, Tex. police respond to 911 call about domestic dispute, encounter a knife-wielding man. Man eventually raises his hands in a surrender pose, at which point the officers—30 feet away—shoot him dead. And to trial the case must go, says the Fifth Circuit. Accepting the man's estate's version of events as true, the officers do not enjoy qualified immunity.
- Creep in a University of Michigan executive MBA program falls for a classmate and, in true creep fashion, goes from buying gifts and asking to "schnuggle" to calling the former object of his affection a "psycho hobeast" and "lying slut whore" when his advances are rejected. Was the university deliberately indifferent to his increasingly threatening behavior? Sixth Circuit: Very possibly; there are disputed issues of fact, so the case goes back down. Dissent: No question this guy is a creep, but the university appropriately escalated its response at every stage.
- Friends, two years ago we relayed to you the tale of an Ashland, Ky. cardiologist who led the nation in billing Medicare for angiograms and his conviction for health care fraud. It turns out the gov't withheld exculpatory evidence (on orders from the district court) showing that 7% of the procedures he performed may have been unnecessary; the jury, on the other hand, heard testimony that that number was around 50%. Sixth Circuit: New trial.
- After becoming a real pain in the neck to the warden by filing "multitudinous lawsuits [and] grievances, and [giving] an interview . . . to a local newspaper," a successful jailhouse lawyer and all-around fussbudget is transferred from one maximum security prison to another. Naturally, he sues, arguing that his transfer was retaliation for his free speech in violation of the First Amendment. Was it? Seventh Circuit: No. It's okay for prison officials to transfer an inmate based on the substance of his complaints so long as the transfer is not motivated by the fact that the inmate complained. Plus, most prisons are unpleasant places to be, so the transfer from one unpleasant place to another doesn't cause any harm.
- ShotSpotter uses sophisticated microphones to detect the sound of gunfire, triangulate the location, and alert local police. Peoria, Ill. officer receives ShotSpotter alert while on night patrol, and dispatch informs him that vehicles are leaving the address where the gunfire took place. Upon approaching the address, the officer sees only one car leaving the area. He stops it and discovers a felon with a firearm. And the stop—holds a divided Seventh Circuit—did not violate the Fourth Amendment.
- The Stutsman County, N.D. courthouse houses both the county sheriff and the local police dep't. But the hallway separating them became a vast chasm when a city cop anonymously reported a county cop for using a county-owned jet ski with the sheriff's son for personal use. But wait! The county didn't own a jet ski. The identity of the city cop—who is also the president of the state fraternal order of police—is uncovered, and he is barred from entering county offices and fired after a sprawling investigation. Moreover, the county revokes the police union's contract to operate ATMs and vending machines in the courthouse. Eighth Circuit: It did not violate the First Amendment to fire the city cop.
- Man released from involuntary commitment in mental institution in 2000 (when he was 18) goes on to lead successful, peaceable life. But he's barred from obtaining a firearm. A violation of his Second Amendment rights? The Ninth Circuit says no. "[N]othing in the record suggests that Plaintiff's level of risk [of suicide or aggression] is nonexistent or that his level of risk matches the risk associated with a similarly situated person who lacks a history of mental illness."
- The opening notes of Led Zeppelin's "Stairway to Heaven" do not infringe on the copyright of a lesser-known band, says the Ninth Circuit, sitting en banc. So there's no need for a new trial; the district judge did not err by refusing to play "Taurus" (by the band Spirit) for the jury.
- Male student at the University of Denver challenges the fairness of the school's sexual misconduct disciplinary proceedings, alleges that they are biased against men. Tenth Circuit: No, they are biased against respondents, virtually all of whom happen to be men. The school's procedures would subject female respondents to an equal degree of "railroading."
- Florida corrections officials stop hormone therapy and deny social transitioning (here, the freedom to wear makeup, long hair, and women's garments) to transgender inmate, who makes multiple attempts at suicide and self-castration. Deliberate indifference to a serious medical need in violation of the Eighth Amendment? Eleventh Circuit: The hormone claims are moot because the prison changed policy, and the denial of social transitioning does not violate the Eighth Amendment. Dissent: I respectfully disagree with my dumb, idiot colleagues.
In 2015, an armed shoplifter fled into an innocent family's Greenwood Village, Colo. house. Only one person was home, and they were able to exit safely. But during a 19-hour siege, police intentionally destroyed the house using explosives, high-caliber ammunition, and a battering ram mounted on a tank-like vehicle. And last year, the Tenth Circuit ruled that the city did not need to compensate the homeowners, Alfonsina and John Lech. This week, IJ asked the Supreme Court to review the case. "For well over a century, the Supreme Court has enforced a simple rule: The government has to pay for private property it takes or destroys," says IJ Attorney Jeffrey Redfern. "If the government requires a piece of property to be destroyed, then the government should pay for it—that's just as true regardless of whether the people doing the destroying are the local school board or the local police."