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.
- For years, scientists could serve on EPA advisory committees while also receiving EPA grants. In 2017, the EPA put a stop to that. Which, says the D.C. Circuit, was an arbitrary and capricious about-face. The EPA made "a major break from the agency's prior policy" while offering no explanation ("not a peep") for its change in course.
- In 1976, a 15-year-old girl is found raped and murdered. Police interview man who lived nearby—and who is known as "Spaceman" (he claimed he was from outer space)—multiple times over five years, using multiple techniques (including hypnosis by an English teacher with no formal hypnosis training). Spaceman names two brothers as attackers, and one is charged, convicted, and sentenced to life in prison for the girl's murder. But wait! DNA testing in 2015 exonerates him. And the Third Circuit says absolute immunity does not bar all his claims against Indiana County, Penn. prosecutors for ignoring the Constitution from going forward. (More from the Innocence Project.)
- Woodbridge, N.J. high school history teacher is fired. Illegal discrimination based on his Egyptian heritage? The principal did allegedly call him "Arabia Nights" and "Big Egypt." Third Circuit: Yes, those isolated statements are offensive. But his reading assignments featuring "Jews are Like a Cancer" and "U.S. Planned, Carried Out 9/11"? Teaching that Hitler was just misunderstood? We're pretty sure we know why he was fired.
- Pennsylvania district court issues a temporary restraining order requiring the immediate release of 20 immigrant detainees because of the COVID-19 pandemic. The gov't appeals, but TROs aren't normally appealable. Does the appellate court have jurisdiction? Third Circuit: This "TRO" is really a preliminary injunction, which is appealable.
- Allegation: New Orleans prosecutors have long issued fake subpoenas ordering crime victims and witnesses to speak with prosecutors outside of court on pain of jail or fines. If that doesn't succeed, prosecutors obtain arrest warrants based on false, misleading info. The lead plaintiff, a victim of domestic violence, spent five days in jail on a $100k bond after declining to talk. Fifth Circuit: Plaintiffs' constitutional claims can proceed. Prosecutors are protected by absolute immunity when they're prosecuting but not when they are gathering evidence.
- Border Patrol agent apprehends mother, her 15-year-old daughter, and a 14-year-old friend crossing Texas border. He beats, strangles, mutilates the mother, who escapes when he turns to the daughter. The agent partially buries the daughter and leaves her for dead in the desert (she survives) and takes the friend to his apartment, where he rapes her. He kills himself as law enforcement arrive. Fifth Circuit: The mother and daughter's claims against the feds under the Federal Tort Claims Act cannot proceed because the agent was acting outside the scope of his employment. (The friend's claims are proceeding below.)
- Woman is arrested for public intoxication and taken to Young County, Tex. jail, where jailers put her in a cell to sleep it off despite ample evidence she had attempted suicide via overdose. (Police brought her bag of empty pill packs to the jail, and her husband called the jail to say she was suicidal.) She dies. Jailers swear they checked on her at regular intervals, but six hours of video are inexplicably missing and what video remains contradicts the jailers' account. Fifth Circuit (2017): No suing the jailers. Fifth Circuit (2020): But a jury might think the county's policies are to blame.
- Nearly 20 years ago, the Fifth Circuit held that a federal law prohibiting people subject to domestic violence protective orders from possessing guns or ammo was constitutional. And the caselaw has not developed in a way to change that conclusion, says the Fifth Circuit, though two-thirds of the panel separately encourage the court to take the issue en banc to consider an entirely different framework for Second Amendment challenges.
- Geriatric inmates at Grimes County, Tex. prison obtain district court order spelling out in great detail steps prison officials must take (unrestricted access to soap and water, regularly cleaned masks, disinfected common areas, among many other things) to protect inmates from COVID-19. Fifth Circuit: Not so fast. The inmates skipped the prison's internal grievance process; there's no evidence corrections officials are deliberately indifferent to the risks inmates face; and the district court's order may in fact irreparably harm correction officials' efforts to respond flexibly to the crisis (by forcing them, for instance, to get the district court's permission before implementing rapidly changing CDC guidelines).
- Plaintiffs: Detroit's five lowest-performing public schools are bad. Teachers are unqualified and mostly quit after a year or two. The facilities are decrepit and out of compliance with health and safety codes. Textbooks are out of date or nonexistent, and classrooms lack basic supplies. Sixth Circuit (over a dissent): Which, if proven, would violate the right to a basic minimum education (i.e., access to literacy), a due process right that we are now officially recognizing as fundamental for the first time.
- Michigan allows in-state alcohol retailers—which are participants in the state's three-tier system—to ship directly to consumers. But it prohibits out-of-state retailers from doing the same. A Commerce Clause violation? Or consistent with the powers granted to the states under the 21st Amendment? Sixth Circuit: This is perfectly acceptable. Concurrence: This is barely acceptable.
- Reporter for Rockford, Ill. news site that monitors police scanner activity takes photos of undercover prostitution sting. Officers recognize him, tell him to leave. He does but is arrested for, among other things, driving his motorized bike the wrong way down a one-way street and 4 mph too fast. (All charges are dismissed.) Police put the reporter's mugshot in a press release with the mugshots of the johns. An unconstitutional retaliatory arrest? The Seventh Circuit says no.
- Self-proclaimed Satanist wishes to engage in "sex magick rituals" that he believes violate Illinois laws forbidding adultery and fornication. He also wants to marry more than one person, which is illegal too. Seventh Circuit: All this sexiness demands the sexiest of doctrines—issue preclusion and Article III standing. The man's challenge to the bigamy law fails on issue preclusion grounds because he lost a virtually identical challenge in 2017. And the man lacks standing to challenge the adultery and fornication laws; since those laws are no longer enforced, he can adulter and fornicate without fear of prosecution.
- Iowa law prohibits the opening of new outpatient surgery centers without a "certificate of need" from the state, which can be obtained only via an uncertain, expensive, and time-consuming process that existing surgery centers and hospitals have effective veto power over. By sheer coincidence, existing centers and hospitals are also exempt from this requirement; they can expand their services with few limits. Eighth Circuit: The state is just trying to protect hospitals from competition; that it is also protecting existing centers from competition doesn't make it unconstitutional. (This is an IJ case.)
- What is a "reasonable" amount of time for the EPA to act on a petition under the Federal Insecticide, Fungicide, and Rodenticide Act, to cancel the registration of a pesticide alleged to cause "widespread, serious risks to the neurodevelopmental health of children"? EPA: How about more than a decade? Ninth Circuit: Mandamused!
- There's bad lawyering, and then there's lawyering so bad that the Tenth Circuit holds the plaintiffs' lawyer liable for $1 mil in attorneys' fees. But that's what you get if you ignore orders not to file "any more prolix, redundant, meandering pleadings or briefs."
- In this week's edition of COVID-related abortion-stoppage litigation, the Fifth Circuit allowed the state to halt all abortions except those where the mother would be past the legal limit for any abortion when the governor's order expires, which it did on April 21. The governor signed a new executive order into effect that more loosely limits procedures, including abortions. Meanwhile, the Eighth Circuit (over a dissent) will allow Arkansas to enforce its temporary ban on surgical abortions, while the Eleventh Circuit will not stay a preliminary injunction allowing Alabama abortions to continue for women whose pregnancies will be past the legal limit for abortion when the governor's order ends (plus other narrow circumstances).
Last year, Clarkston, Wash. resident Kathy Hay and her family put up a little free pantry in their backyard—a blue cupboard where the family and their neighbors donated fresh produce, canned goods, and other foods for the dozen or so needy neighbors and families who used the pantry each day. But in February, Asotin County officials shut the pantry down under threat of jail time and ruinous fines unless Kathy complies with dozens of requirements, like setting up a 501(c)(3). And even if she complies, she will still be banned from offering fresh foods. The red tape and the ban do not make sense, especially during the pandemic, so Kathy and her neighbors have teamed up with IJ to file a constitutional challenge in federal court. Click here to learn more.