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.
This week, IJ and its clients won a huge victory at the Supreme Court, where SCOTUS ruled that it's unconstitutional for school choice programs to exclude religious schools. Click here to read Anthony Sanders, the director of IJ's Center for Judicial Engagement, explain how we obtained the ruling only by the skin of our teeth, overcoming some truly metaphysical arguments about time and space. And click here for an in-depth podcast episode about the case.
- Allegation: In 1992, Connecticut officials open new prison built on former waste site that they know is likely leaking radon, the leading cause of lung cancer among nonsmokers. Subsequent testing confirms excessive radon levels, but the mitigating system they install in 2014 doesn't remedy radon in the cell blocks. Officials: There may be precedent saying we can't subject inmates to other carcinogens, but there is no precedent regarding radon specifically. Second Circuit: No qualified immunity.
- In which the Second Circuit allows the release pending trial of two defendants—attorneys in their early 30s who, in response to the death of George Floyd, allegedly threw a Molotov cocktail at an unoccupied NYPD cruiser.
- Distraught at losing a place on the varsity cheer team to a freshman—a freshman!—Pennsylvania high school sophomore shares some choice words on social media. Fellow students alert the cheerleading coaches, who promptly cut the complaining student from the JV team. Student sues, alleging a First Amendment violation. Third Circuit: And she wins. Her off-campus speech was fully protected by the First Amendment. Concurrence: We don't have to go quite that far to hold that she wins.
- Huntington, W.Va. officers respond to report of a closing-time brawl outside the ironically named Rehab bar. Upon arriving, one officer is told by a bystander that a black man with red pants and a gun had just left. Other officers locate a black man with red pants a block away, frisk him, and find a gun. Which in no way violated the man's Fourth Amendment rights, holds two-thirds of a Fourth Circuit panel.
- In 2018, Maryland banned "rapid fire trigger activators"—devices that permit guns to be fired faster. Unlike other states, however, Maryland didn't grandfather in existing owners; everyone has to get rid of their devices. Gun rights group sues, alleging a taking in violation of the Fifth Amendment. Fourth Circuit: The law doesn't require owners to turn the devices over to the government or a third party; they could also just throw them out. So no taking. Dissent: Forcing someone to get rid of their stuff is a taking.
- Oberlin College's hearing panels for sexual assault allegations may be a kangaroo court, but is it a kangaroo court that treats the Bruces worse than the Sheilas, in violation of Title IX? Sixth Circuit: Taking the allegations as fair dinkum, the aggrieved bloke has a case. Dissent: Pig's arse!
- In the Sixth Circuit, a Michigan man convicted of murdering a woman will get a new trial. Without overwhelming evidence of guilt, the court cannot ignore that the man was shackled in front of the jury. "Visible shackling undermines the presumption of innocence."
- Inmate at Muskegan, Mich. prison files pro se lawsuit against guard, alleging that guard repeatedly brandished a knife and threatened to kill him. District court dismisses the case without requiring the guard to answer (a shortcut blessed by the Prison Litigation Reform Act). Sixth Circuit: That was premature; the inmate's Eighth Amendment claim is at least colorable. Dissent: The claim is decidedly not colorable. And even if it were, the district court could have sua sponte asserted qualified immunity on the guard's behalf and dismissed on that ground.
- The Seventh Circuit brings us its latest installment addressing the propriety of certain Wisconsin election laws under the Constitution and the Voting Rights Act. The upshot: The state can limit the hours and days for early voting; the state can require people live there for 28 or more days before becoming eligible to vote for offices other than the president; the state can require documentary proof of residence to register; the state can limit sending absentee ballots via email or fax to just a few narrow categories of voters; the state cannot require educational institutions to indicate whether students are citizens for them to be able to use college IDs; the state can refuse to accept expired student IDs; the state cannot demand students provide proof of current enrollment in addition to ID; and the district court must reassess whether the state has made it too hard to get a voting credential for people who cannot readily obtain one.
- Racine, Wisc. man impersonates a DEA agent so that he can get reacquainted with a high school crush. Not amused, the object of the faux-agent's affection calls the cops. Defendant: I'm not a criminal, just "a hopeless romantic." Seventh Circuit: "Those roles need not be mutually exclusive."
- After Christian County, Mo. sheriff pleads guilty to embezzling $50k from the county (and after he stockpiled three tons of food in the county jail's basement in preparation for Armageddon), a new sheriff is elected. He promptly fires two deputy sheriffs who supported his opponent in the election. Were they fired for their political activity in violation of the First Amendment? Eighth Circuit: A deputy sheriff is the sheriff's alter ego (in Missouri, anyway), so the sheriff can demand political loyalty upon pain of firing.
- Suspected drug dealer flees from St. Louis police, striking a patrol car and an officer. The officers see a gun in the suspect's vehicle, and one of them says he's "going to kill this motherfucker, don't you know it." That cop does, indeed, shoot and kill the suspect. Prosecutors decline to charge the cop, but, after activists protest, they reverse course and charge him with first-degree murder. He's acquitted. Eighth Circuit: And he cannot sue the prosecutor for bringing charges against him.
- "I SAID, THE ELEVENTH CIRCUIT UPHELD TWO FLORIDA STATUTES REGULATING HEARING AIDS WHILE REMANDING FOR THE DISTRICT COURT TO CONSIDER A THIRD SUCH LAW ON THE MERITS."
- In 1937, the Missouri Supreme Court upheld state-mandated racial segregation, ruling that barring a black student from the University of Missouri School of Law did not violate equal protection because the state was willing to pay his tuition at an out-of-state school. (The Supreme Court reversed, but the student went missing and his fate is unknown.) Missouri Supreme Court (2020, see footnote 7): Parties really need to stop citing our 1937 decision, even for otherwise unassailable points of law.
- And in en banc news, the Ninth Circuit will not reconsider its decision allowing the "Fairbanks Four" to sue the city and police officers over their now-vacated murder convictions and subsequent 18-year incarcerations. Dissent: Their convictions were vacated by agreement with prosecutors, not after judicial review; so the convictions haven't been invalidated. We're the only circuit to allow damages claims to go forward in such circumstances.
Calling themselves end-of-life doulas, some kindly senior citizens in rural California have drawn the ire of state regulators for teaching the terminally ill and their families how to hold home funerals. Though home funerals are legal in California, officials are cracking down on the volunteer doulas for acting as "funeral directors" without a state license and demanding that their tiny nonprofit build a million–dollar funeral home. Do the people of California really need to be "protected" from the likes of retiree Donna Peizer, an 80-year-old doula with three university degrees who helps families as a labor of love? IJ doesn't think so. That's why we've teamed up with Donna, her fellow doulas, and Californians who want their wisdom and assistance to vindicate the First Amendment right to give advice and hold home funerals on private property without pointless government interference. Click here to learn more.