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.
If you find yourself with more time to listen to podcasts these days, we think you will find our nine-part series on the Fourteenth Amendment a worthy listen. Click here for Episode 1. Or look for "Bound By Oath" on any fine podcasting app.
- Pakistani man suspected of playing a role in 9/11 attacks claims he was tortured at CIA black sites, including "Site A." He plans to argue at his upcoming trial that certain incriminating statements he made are inadmissible (on account of the torture), which he says requires certain evidence from Site A. But wait! The gov't plans to destroy Site A. It has provided digital/photo documentation instead of the original evidence. D.C. Circuit: And that evidence is sufficient. The gov't may destroy Site A. (Click here for an inside view of the man's attorneys as they prep for "the largest criminal trial in US history.")
- Grocery employees who believe they were ripped off by their employer file a nationwide class action on behalf of themselves and similarly ripped-off employees. Grocery store: Sorry, the federal court doesn't have jurisdiction over any grocery employees outside the District of Columbia. Dismiss them. D.C. Circuit: We can't! Putative class members, by definition, are not yet parties and therefore cannot be dismissed. Dissent: Even if the plaintiffs hadn't waived that argument, it would be wrong.
- Citizens United v. FEC held that corporations could spend unlimited amounts on independent political ads. SpeechNow.org v. FEC (an IJ case) held that groups that make only independent political expenditures may accept unlimited contributions. Combine the two and you get super PACs. Allegation: Super PACs are breaking disclosure laws by accepting contributions from closely held corporations; the real donors are the corporations' owners. D.C. Circuit: Maybe, but it was reasonable for the FEC to decline to pursue the matter given how confusing the law is.
- Seventeen years ago, a U.K. statistics software company violated North Carolina civil law by reverse-engineering the code of a U.S. statistics software company. Read on for the pond-crossing shenanigans that the copycat has employed since. There's a U.K. judgment, a U.S. judgment, a U.K. judgment vacating the U.S. judgment, a U.S. judgment vacating the U.K. judgment that vacated the U.S. judgment, and more. How will the odds play out? The Fourth Circuit expresses "respect for the judicial system and judges of the United Kingdom." But.
- From Salome to Mata Hari to Magic Mike, erotic dancers have long inspired reactions. Add to their steamy ranks a Nashville strip club called Déjà Vu. When Déjà Vu moved locations, its new neighbors allegedly conspired with city officials to hurt the club by preventing valet parking. Which, claims the club, was a conspiracy to limit civil rights [ed.: per a law enacted during Reconstruction to fight the Klan]. Sixth Circuit: Nope. That law protects minorities, not strip clubs.
- Based on their "training and experience" and an unappreciated "smart mouth," two plainclothes Cleveland cops stop a man from entering his home and beat him up on his porch in front of his mom. After contempt-of-cop charges are dismissed, the man sues. Sixth Circuit: Qualified immunity. The officers had probable cause to arrest. In dissent, Chief Judge Cole argues that the majority improperly relies on the cops' side of the story. Plus, if there was probable cause for an arrest, what was the crime? After all, the cops charged the man only with resisting the arrest and "obstructing official business."
- TFW you write a majority opinion, but you don't have the votes in the Sixth Circuit and you don't feel like rewriting your opinion as a concurrence, so you just say, "Were I to write the contract interpretation section of the majority opinion, it would read something like this.
- Recipient of junk faxes files a nationwide class action on behalf of herself and other recipients. Fax spammer: Sorry, the federal court doesn't have jurisdiction over any fax recipients outside the class representative's state. Seventh Circuit: That rule would be wild, and we decline to adopt it.
- Amputee prisoner files class action alleging that prison's lack of grab bars and other accommodations for disabled prisoners is illegal. District court: But to determine whether the class members share a common injury, I would have to determine if you are right on the merits. Case dismissed. Seventh Circuit: That is not how class actions work. Case undismissed.
- Four days after woman names her friend the beneficiary of a life insurance policy, the woman is fatally stabbed. But police suspect the woman's husband instead, and he is convicted and sentenced to life in prison. Local journalists dig deep into the story and raise questions about the friend. Armed with new evidence about the friend and her life insurance proceeds, the man gets a new trial—and an acquittal. He sues police, prosecutors, and Lincoln County, Mo., claiming his rights were violated in the investigation and initial trial. Eighth Circuit: And the county's insurance company must defend against the suit despite the policy's malicious-conduct exclusions. [Ed. note: The friend meanwhile is now serving a life sentence for a different murder. Moreover, police are looking into the death of the friend's mother, who "fell" off a balcony.]
- Woman who wrote bad checks in 1997 does not reoffend, but for 20 years is repeatedly reincarcerated because she cannot pay off all the fines and fees imposed by Sherwood, Ark. municipal court. Eighth Circuit: She may have violated a city ordinance; the fines and fees may have gone into the city's budget; she may have been arrested by the city's police; she may have been held in city jails; the judge may have been appointed by the mayor; and the court may have been funded by the city. But Arkansas municipal courts are state entities, so she can't sue the city for damages. [Ed. note: This week, the Eighth Circuit denied an IJ petition to rehear the case en banc.]
- Drunk off-duty Honolulu cop attempts to reload his already-loaded handgun, accidentally shoots bartender in the stomach. (The bartender survives but suffers permanent debilitating injuries. The cop is sentenced to 60 days.) Bartender: The police dep't is liable because it requires officers to remain armed off duty, except when they're intoxicated. The cop was required to be armed when he entered the bar, and this wasn't the first time he'd drunkenly unholstered his weapon. Ninth Circuit (over a dissent): The claim was properly dismissed.
- Immigrants who "depart" the U.S. while their immigration appeal is pending are deemed to have withdrawn the appeal. Feds: So technically this Mexican citizen, whom we forcibly deported, departed. His case goes away now, right? Ninth Circuit: Wrong.
- Man in van with false plates declines to exit, shoots a Tulsa, Okla. officer. He gets 40 years for, among other things, attempting to kill a witness. That is, he intended to kill the officer in order to prevent information from being conveyed to federal law enforcement. Tenth Circuit: Come on. The man was not the target of a broader investigation and any of the numerous officers at the scene could have conveyed the exact same info (that he was a felon in possession of a gun) to the feds. He may have been trying to commit suicide by cop.
- Hidalgo County, N.M. ranchers: The feds have deemed our land essential jaguar habitat, which means renewing grazing permits and making improvements to our land is more difficult. But, according to the feds, there have been but a handful of individual jaguar sightings over the years and no evidence of jaguar breeding. Tenth Circuit: The designation is arbitrary and capricious.
Seven years ago, Fresno police investigating illegal gambling seized $275k in rare coins and cash from two businessmen (who were never charged with a crime)—but the officers failed to report $225k they took. Instead, the businessmen allege the officers booked $50k into evidence and pocketed the rest. And last year, the Ninth Circuit ruled that since no prior case law clearly established that police cannot steal from people they are investigating, the officers are shielded from suit by qualified immunity. This week, IJ filed an amicus brief urging the Supreme Court to hear the case. Officers acting in bad faith would have been liable for their actions in 1780, 1880, and 1980, but the Court's creation of qualified immunity (in 1982) has meant that incompetent or predatory officers are too often shielded from accountability.