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.
- Since 2005, the Postal Service has allowed people to design and purchase their own custom stamps as long as they are not "politically oriented." But many custom political stamps (for instance, bearing the names of political candidates) are in fact in circulation in 2015 when plaintiff's design (depicting Uncle Sam struggling against a snake labeled Citizens United) is rejected. A First Amendment violation? Postal Service: We are taking steps to end the custom stamp program. The case is moot. D.C. Circuit: Not so. Back to the district court to figure out if this is viewpoint discrimination, but to the extent the Postal Service bans designs containing depictions of "political content," that's such an amorphous standard as to violate the First Amendment.
- After officials determine that CBP agents are failing to detect fraudulent documents at El Paso, Tex. border crossing, the agency issues new instructions to agents that will result in more travelers having to go through secondary inspection and thus more work for agents. CBP agents' union: Which is a change in a condition of employment that requires bargaining first. Arbitrator: That's so. Federal Labor Relations Authority: That is not so. D.C. Circuit: Seems like it is so, so the FLRA needs to reconsider.
- To promote tourism, the Welsh government helped develop a "Dylan Thomas Walking Tour of Greenwich Village, New York." But the tour materials contain a copyrighted photograph of the famous Welsh poet that the Welsh government allegedly hasn't licensed. Can the purported copyright owner defeat sovereign immunity and sue Wales itself? Second Circuit (seeing with blinding sight): Sure, tourism is a government purpose, but the means, a paid tour, was regular private commerce. Wales can be sued.
- Charleston, S.C. bans guided tours of the city by people who have not first obtained a license. Which is a restriction on speech, says the Fourth Circuit, so the city needs to present some evidence that forcing people to, among other things, master a 500-page manual of city-approved facts before giving paid tours protects the public in some way. And because the city offered merely speculation about potential harms—which have not occurred in the many other cities that do not license guides—the law fails. (This is an IJ case.)
- After incapacitating a homeless man, five Martinsburg, W. Va. police officers shoot him more than 20 times, killing him. No qualified immunity, holds the Fourth Circuit. "To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept."
- Allegation: While awaiting trial, detainee in Wake County, N.C. finds that prison officials are repeatedly opening, copying, and misdirecting his mail to and from his lawyer. When confronted, one official responds: "Sue me." Man sues. Fourth Circuit: The man's First Amendment claim should not have been dismissed.
- In 2018, the U.S. Supreme Court held that Proclamation 9645 (the "travel ban") could not be preliminarily enjoined. And on the strength of that holding, the challengers claims should now be dismissed outright, holds the Fourth Circuit.
- Allegation: Two teenage Rio Grande City, Tex. sisters run away from home. Upon their return, the girls' parents ask police to scare them into believing they'd be arrested (even though neither was suspected of a crime) to teach them a lesson. An officer orders the older daughter to get out of the car, but she refuses and makes a run for it. Officers chase, one tases her, and she falls face first into the pavement, breaking her teeth and resulting in burns, bruises, and lacerations. She's arrested. Excessive force? District court: Claims dismissed. Fifth Circuit (2018): The claims against the officers shouldn't have been dismissed. District court: Fine. Qualified immunity. Fifth Circuit (2020): The law is clear that it was unreasonable to tase the girl if the situation is as she alleges, which a jury needs to determine.
- Inmates at Navasota, Tex. geriatric prison allege that the prison has failed to reasonably protect them from COVID-19. The district court entered a preliminary injunction requiring the prison to limit transportation in and out of the prison, provide inmates with access to sanitization supplies, and take other steps to minimize the spread of the disease. And the Fifth Circuit, in a per curiam decision with all three members of the panel writing separately, will vacate the injunction, as the prison has substantially complied with the ordered measures.
- Ohio inmates contend that the prison's lackadaisical approach to COVID-19 violates the Eighth Amendment. The district court entered a preliminary injunction requiring the prison to identify vulnerable inmates and determine which might be eligible for early release or transfer, which the Supreme Court ordered stayed after the Sixth Circuit declined to do so. Upon further review, the Sixth Circuit determines that the prison's "six-phase action plan" and evolving protocols were a reasonable response to the novel threat, so the district court should not have granted the preliminary injunction. Dissent: 837 medically vulnerable inmates were left in a perilous situation as the virus spread, and the prison should've done more. Meanwhile, similar litigation from Michigan inmates and pretrial detainees meets a similar fate at the Sixth Circuit. (We recently discussed the Ohio litigation on the podcast with one of the inmates' attorneys.)
- Prosecutor drives the wrong way down a one-way street, crashes, injures man. Though he is "hammered," Grand Rapids, Mich. officers neglect to breathalyze the prosecutor and drive him home. They also discuss the situation with a superior on a non-public, unrecorded police line. Yikes! Apparently unbeknownst to every city employee, the line was in fact recorded, and the conversations are used in an internal investigation of the incident that results in the superior officer being fired. (The prosecutor resigns, is sentenced to a night in jail.) Did the city violate federal and state wiretapping laws? It did not, says the Sixth Circuit. [Ed.: In 2015, after a Grand Rapids officer beat and choked an innocent college student unconscious, the very same prosecutor tried the student for assaulting the officer; SCOTUS will consider the student's claims for damages next term. That is an IJ case.]
- Under a new federal rule, immigrants who accept or seem likely to need some form of public assistance for 12 months over the course of three years (counted in such a way that you could get to 12 months by accepting four different kinds of benefits for three months) will have difficulty obtaining citizenship or being admitted to the country. Other new factors counting against them include having a big family, failing to earn 250% of the federal poverty guidelines (near the U.S. median income for a family of four), not having private, unsubsidized insurance, and more. Seventh Circuit (over a dissent): No enforcing the rule while litigation proceeds.
- While Rockdale, Ill. officer is in his squad car with the documents of a motorist (pulled over for having an insufficiently lit license plate), a Will County, Ill. officer arrives, approaches the motorist, and is rudely told to absent himself. The Will County officer smashes motorist's window, beats him. The motorist is convicted of battery on an officer, sentenced to six years in prison. Ill. appeals court (over a dissent): Dashcam video clearly contradicts the Will County officer's account. Conviction reversed. Seventh Circuit: But the motorist's suit against the officers, which was initially filed before he was exonerated, cannot go.
- Allegation: In 2016, Maryland Heights, Mo. officer pulls woman over for speeding, searches her car, and finds no contraband. Then a female officer conducts a roadside strip search and body cavity search. Eighth Circuit: No need to treat the strip search and body cavity search as separate searches. To trial this must go.
- Missouri law requires women, before they can have an abortion, to certify that they have had a chance to see an ultrasound at least 24 hours in advance and received a booklet expressing the state legislature's view that life begins at conception. Woman: Which violates the First Amendment and my Satanist beliefs. Eighth Circuit: It doesn't violate the First Amendment.
- California law bars trade schools from accepting students who do not have a high school diploma or its equivalent. Horseshoeing school owner: Not only does the law make no sense (you don't need to know algebra to learn to shoe a horse), restrictions on teaching and learning at my school are subject to the First Amendment, even if you call those restrictions "consumer protection laws." Ninth Circuit: The law burdens speech and is so "riddled with exceptions" that regulators can't know whether it applies to a given school without first examining who is speaking and the content of their speech. The case should not have been dismissed. (This is an IJ case.)
- After finishing his prison term, sex offender is held in Orange County, Calif. jail for five years while he waits for trial that will determine whether he's to be involuntarily committed at a state hospital. Ninth Circuit: He plausibly alleges conditions for civil detainees at the jail were similar to those for their criminal counterparts and certainly much worse than conditions at the hospital. His suit against the sheriff and the county should not have been dismissed.
- Allegation: After armed passenger flees on foot from traffic stop, Warrior, Ala. police threaten to jail the driver (who had violated his parole). The man reluctantly phones the passenger, tells him the coast is clear, and picks him up. Police pull them over, and the passenger shoots at the officers, who shoot back and hit the driver five times. (He lives.) Did the officers violate, among other things, the driver's Thirteenth Amendment right against involuntary servitude? Eleventh Circuit: No. Qualified immunity.
- And in en banc news, the Sixth Circuit (over a dissent) will not reconsider its decision granting qualified immunity to two Cleveland plainclothes officers who allegedly beat a man on his porch and then had him charged with assault after he didn't respond sufficiently respectfully to their questions.
Using explosives and a battering ram attached to an armored personnel carrier, Greenwood Village, Colo. police blew up Leo Lech's house in an effort to dislodge a fugitive who had broken in and was holed up inside. Afterward, the house was deemed uninhabitable and had to be torn down, but the police refused to compensate Lech for any of the damage. The Fifth Amendment normally requires the government to compensate property owners when it intentionally takes or destroys private property, but the Tenth Circuit has held that the Fifth Amendment doesn't apply to the police. IJ has filed a petition for certiorari, asking the Supreme Court to set the Tenth Circuit straight. Click here to read more.