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: Special guest Joseph Mead of ACLU Ohio and the Cleveland-Marshall College of Law joins the panel to talk the right to a basic minimum education and the release of medically vulnerable inmates from a COVID-infested federal prison. Click here for Apple Podcasts.
- The Air Tour Management Act of 2000 directed the FAA and the National Park Service to draft rules governing aerial tours over national parks and instructed them to "make every effort" to finish the job within two years. Twenty years later, there are still no rules. D.C. Circuit: Mandamused!
- In 2011, New York City police officers arrested around 150 "Occupy Wall Street" protesters who refused to leave their encampment in Zuccotti Park. And the protestors' ensuing false arrest and malicious prosecution claims were rightly dismissed, says the Second Circuit. So were their retaliatory arrest and First Amendment-discrimination claims. And so were their due process claims.
- From 1915 to 1963, successive owners of Jersey City, N.J. chromite processing plant dump toxic waste onsite. (The waste is also used nearby for road construction and wetland filling.) The site's owner (since 1954) says it has spent $367 mil to clean it up. Given how much control the gov't exerted over the industry during World War II, must the feds chip in and pay some of the cost? The Third Circuit says no.
- One fun feature of federal civil procedure is the "finality trap," an interaction of rules that leads to undead cases—too final for the district court to change but not final enough to appeal. Will the Fifth Circuit finally drive a stake through the dark heart of this doctrine? Find out in an en banc opinion that's really, really complicated.
- Allegation: Houston police shoot and kill motorist as he reaches for his wallet. An officer claims he thought the man was reaching for a gun, but no gun is found. After the man's family sues, the police produce a CD with body camera videos and internal files, but the court withholds the CD from the plaintiffs and dismisses the case. Fifth Circuit: Can't do that.
- Allegation: Jackson, La. inmate blocks the surveillance camera in his cell; prison guards enter, spray him with a chemical agent, and restrain him. The guards then take him to the showers and lobby where they mace and beat him. Fifth Circuit: His excessive force claims for events in the cell are dismissed, but his claims for the shower and lobby beatings may proceed.
- Responding to complaint that Cincinnati, Ohio man had recently threatened his neighbors, police officers approach man's house, open unlocked door leading to second-floor apartment, proceed unannounced to the second floor, encounter the man (armed with a rifle), and shoot him dead. Man's estate sues. And, says the Sixth Circuit, the officers enjoy no qualified immunity for their unlawful entry into the man's home. But the trial court rightly dismissed claims relating to deadly force and indifference to the man's medical needs.
- After Kentucky Gov. Andy Beshear issues an executive order banning mass gatherings, police ticket attendees at a drive-in church service on Good Friday. Sixth Circuit (per curiam): Which likely violates Kentucky's Religious Freedom Restoration Act. The state is enjoined from restricting drive-in services during the pendency of this litigation.
- Bud Light (in advertising): Miller Lite is made with corn syrup. Miller Lite (in court): True, but since yeast converts it to alcohol, you're falsely implying that Miller Lite contains corn syrup. Seventh Circuit (in five pages): Bud Light can speak the truth. [Ed.: Our grammar fellow-in-residence insists that we note Judge Easterbrook's use of U.K. punctuation rules.]
- The fight over nationwide injunctions continues, this time in a dispute over a presidential proclamation banning immigrants from entering the country unless they had certain types of specified health insurance. Two out of three judges on the Ninth Circuit refuse to stay a district court injunction of the proclamation, while the third considers it a "bad day" for separation of powers and the rule of law.
- Postal inspector sees video footage of Las Vegan man "fishing" in postal boxes for mail. Using a panopticon-like database of billions of license plate photos taken automatically from cameras mounted on tow trucks and police cars, he tracks the fisherman to his apartment, gets a warrant, and arrests him. But was the warrantless search of the database an unconstitutional search? Ninth Circuit: No. The man's vehicle—a rental—was overdue, so he had no reasonable expectation of privacy. Concurrence: Even if he had a reasonable expectation of privacy, it wasn't violated because the database didn't reveal the whole of his movements.
- The Moodsters—2005 characters that were repeatedly pitched to Disney—are five color-coded anthropomorphic emotions: pink love, yellow happiness, blue sadness, red anger, and green fear. Which sounds an awful lot like the 2015 Disney/Pixar hit Inside Out, about an 11-year-old's color-coded anthropomorphic emotions: purple fear, yellow joy, blue sadness, red anger, and green disgust. But in the Ninth Circuit, that's not copyright infringement. Unlike James Bond (sophisticated, virile) or Godzilla (saurian, beam-breathing), the Moodster idea is too "lightly sketched" to be copyrightable.
- In the wake of the Las Vegas mass shooting, President Trump directed DOJ to propose a rule that would prohibit "bump stocks," devices that allow semi-automatic rifles to be fired extremely rapidly. But is a rifle outfitted with a bump stock a prohibited machine gun? Or has DOJ exceeded its statutory authority? Tenth Circuit: The statutory phrase "single function of the trigger" is ambiguous enough to encompass multiple pulls of the trigger. Dissent: No it isn't; Congress may be able to ban bump stocks, but current law does not.
- Extending one's middle finger in the general direction of a police officer (at about the distance of a football field) does not give the officer reasonable suspicion to conduct a traffic stop, says the North Carolina Supreme Court.
- In pandemic-related news, the Sixth Circuit declines to disturb a district court's preliminary injunction ordering the feds to remove certain at-risk inmates from a COVID-infested federal prison in Ohio. [Ed.: We discussed the case on the podcast this week.] Two-thirds of an Eleventh Circuit panel finds, however, that officials may be irreparably injured if a district court order to provide soap and disinfectant to detainees at a Miami jail is not stayed (because, among other things, it may force them to redirect supplies from other facilities where they may be needed more).
Marc N'Da, a naturalized citizen who came to the United States with $60 in his pocket, runs a home health agency that cares for 100 elderly and disabled clients in Nebraska. And though Marc is permitted to drive clients to the grocery store and on other errands, Nebraska officials have outlawed providing "non-emergency medical transportation," like trips to the pharmacy or to doctor's appointments, without a state permission slip that is essentially impossible to obtain without approval from a cartel of existing providers (who themselves offer abominably bad service, forcing patients to wait days to schedule trips and frequently not showing). "I can drive my patients to Walmart," says Marc, "but not the Walmart pharmacy. That makes no sense." In April, Marc teamed up with IJ to challenge the law, which violates the Nebraska Constitution's guarantee of due process and its prohibition on granting special privileges or immunities. Click here to learn more.