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.
- Once the SEC found a compliance officer responsible for not investigating a multibillion dollar Ponzi scheme, he had 60 days to appeal to the United States Court of Appeals for the District of Columbia Circuit (the federal appeals court in Washington that reviews many agency actions). But instead, representing himself, he filed his appeal with the District of Columbia Court of Appeals (the "state supreme court" of D.C.). He learned of the goof one day too late and filed in the right court on day 61. D.C. Circuit (the real one): Too bad.
- Allegation: Homeless man doesn't resist when Austin, Tex. officer grabs his arm. But rather than comply with the officer's orders, the man asks the officer to stop. Without warning, the officer hits him in the head, takes him to ground, beats him further, tases him. Officer: At which point he disarmed me, tased me, and broke my hand. District court: Video shows you had him pinned down the whole time and you told other officers you broke your finger "punching the shit out of him." Fifth Circuit: No qualified immunity.
- Allegation: Man has bad acid trip at concert, paces around mumbling incoherently next to road. Though he is not violent, Southaven, Miss. police hog-tie him using their own personal shackles. They know he has asthma, but officers insist that he stay hogtied at hospital. His face turns from bright red to purple as he struggles to breathe. He dies. Fifth Circuit: No qualified immunity.
- In 2017, Texas passes a law prohibiting state governmental entities from contracting with companies that boycott Israel. After a bevy of sole proprietors file a First Amendment lawsuit, district court preliminarily enjoins the law. Twelve days later, Texas amends the law—to exclude sole proprietors while retaining the law for larger companies. Which makes the sole proprietors' case moot, says Fifth Circuit.
- Corrections officers at Richwood, La. private prison take inmates to a part of the jail without cameras, force them to kneel while handcuffed, and pepper spray them in the face one by one when they deny being gang members. To explain the inmates' injuries, the officers file false reports. Fifth Circuit: No reason to reconsider the lead officer's 60-month sentence.
- The Sixth Circuit enjoins Tennessee's executive order prohibiting nonemergency surgical abortions, such that the procedures may be allowed for women whose pregnancies will be past the legal limit for abortion when the governor's order ends and for women who, due to the stage of pregnancy, will need to undergo lengthier surgical abortion procedures if they wait until the executive order expires (which it did on April 30). Dissent: Courts should not rubber-stamp emergency measures, but "judges should act with care during such times, recognizing the limits of our knowledge, institutional capacity, and lawful authority."
- Illinois prisoner develops cataract in his left eye, but under the prison's "one good eye" policy, the prison refuses to authorize surgery. Five years later, the prisoner is completely blind in his left eye and has a cataract in his right eye. But he's not completely blind, so still no surgery for him. He files an emergency grievance, which is denied. Can he sue in federal court? Prison: No, he should have refiled a standard grievance. Seventh Circuit: That wasn't a required procedure when he filed his grievance, so he exhausted everything he was required to exhaust.
- A divided Seventh Circuit panel says that a universal injunction—that prevents the feds from conditioning receipt of certain grant money on cities' and states' compliance with federal immigration enforcement efforts—is necessary to ensure that Chicago (a sanctuary city) receives the same amount of funds it would have received if the conditions had never been imposed. The full panel held (for the second time) that the conditions are unconstitutional, as the attorney general imposed them without Congress' explicit authorization. (Learn more about the universal injunction issue here.)
- A Mississippi county contracts with an inmate transportation company to transport a pretrial detainee from Colorado back to Mississippi. Ordinarily, the drive would take around 16 hours. But the transportation company travels west from Colorado through at least a dozen other states (some more than once) to pick up and drop off other prisoners. Throughout, the prisoners remain chained in upright, seated positions, often marinating in their own waste. The trip takes eight days. And a detainee's ensuing lawsuit against the company must proceed to trial, holds the Eighth Circuit.
- Man pleads guilty, implicates three friends in brutal 1988 murder of a 78-year-old woman in Fordyce, Ark. All are convicted and sentenced to life in prison. After two decades pass, it comes to light that law enforcement used a prison informant to extract a confession, which they recorded. But the tape was either lost or destroyed, and defense counsel were never informed of the informant or his incentives for informing. On top of that, one of the friends claims sole responsibility for the attack. Eighth Circuit: The two friends did indeed establish that law enforcement destroyed evidence in bad faith, and they're entitled to habeas relief. (More from the Midwest Innocence Project and local reporting.)
- Sitting by designation, trivia whiz Judge Boggs reminds us that in the Cadaver Synod of 897, Pope Stephen VII exhumed and tried the deceased Pope Formosus. Now, however, the Ninth Circuit holds that you cannot sue the dead.
- In 2001, a Navajo man murders a Navajo woman and her granddaughter within the territory of the sovereign Navajo Nation. As the case continues to wind through the courts, two Ninth Circuit judges write separately to comment on the unusual fact that the United States sought the death penalty "against the express wishes of the Navajo Nation, several members of the victims' family, and the United States Attorney for the District of Arizona."
- Kansas law requires residents to provide documentary proof of citizenship before they may register to vote. An unconstitutional burden on the right to vote? A violation of the National Voter Registration Act? Tenth Circuit: Both. As far as the record shows, in the past 19 years only 67 noncitizens have attempted to register to vote, while tens of thousands of people have had their registration delayed or denied under the law.
- Under Florida law, the order of candidates on the ballot is determined by the results of the last gubernatorial election, with the winning candidate's party listed first. For the past 20 years, this has been the Republican Party. Does this unconstitutionally dilute the voting rights of Democrats? Eleventh Circuit: No need to answer that question; none of the plaintiffs alleged an injury, and they sued the wrong person. Concurrence: And this is a nonjusticiable political question. Concurrence/dissent: It's enough to hold that no one is injured.
- And in en banc news, the Ninth Circuit will not reconsider its decision that a California labor regulation mandating that agricultural businesses allow nonemployee union organizers onto their property is not a taking under the Fifth Amendment.
Cities and towns nationwide use their code enforcement powers to treat citizens like ATMs. Such taxation by citation continues amid the COVID-19 crisis, and it's likely the problem will worsen in the coming months as municipalities find themselves facing budget shortfalls. And, a new IJ report finds, a wide range of state laws enable or even encourage the abuse. Titled Municipal Fines and Fees: A 50-State Survey of State Laws, the report is the first comprehensive accounting of state laws relating to municipal fines and fees. It uses 52 legal factors to rank the 50 states based on the extent to which their laws may contribute to municipal taxation by citation. The rankings offer a systematic way to diagnose possible relationships between state laws and municipal behavior—and to identify potential policy solutions. Read the report.