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: Disloyal sheriff's deputies get the ax and Euclidean policing.
- Porn company sues anonymous porn pirate, asks district court to let it subpoena the pirate's internet service provider to determine the pirate's identity. District court: Your product is "aberrantly salacious," and on top of that, who even knows if the IP address subscriber is actually the pirate? D.C. Circuit: The videos' content shouldn't affect the company's ability to defend its copyright. And at this stage, it's at least plausible that the IP address subscriber is the person using that IP address to pirate the porn. The case may proceed.
- Allegation: Television host Joy Reid shares a photo on Instagram of a white woman with her mouth open in front of 14-year-old Hispanic boy at a city council meeting on California's sanctuary city law. What words were coming out of that mouth? According to Reid, they were: "You are going to be the first deported" . . . "dirty Mexican!" According to the boy, they were actually having a civil conversation. The woman sues for defamation. Second Circuit: And the case will proceed. California's anti-SLAPP law is preempted by the Federal Rules of Civil Procedure, the woman is not a public figure, and Reid's posts attributed specific racist conduct to her.
- Allegation: The noxious odors produced by a Bethlehem, Penn. landfill renders residents within a 2.5-mile radius unable to enjoy their porches, swimming pools, yards, etc. Third Circuit: The law of nuisances may be a "'legal garbage can,' full of vagueness and uncertainty," but this is a thing you can sue a landfill over.
- Do prisoners have a protected liberty interest in not being kept in solitary confinement? Fourth Circuit: If they've already been there for four years, they sure as hell do. But they still might lose on qualified immunity grounds.
- Following gunfire at an apartment complex, Richmond, Va. police arrive to investigate. Looking for the gunman, they begin interrogating people in the area and requesting that they show their waistbands. One man—who was not acting suspiciously before being approached—demurs and in a subsequent search is found to be a felon in possession. Was the search justified by exigent circumstances? Fourth Circuit (en banc): Nope. Concurrence: Nope. Concurrence: Nope. Concurrence: Nope, and the dissent is "bereft of any jurisprudential reasoning." Dissent: I appreciate the views of the majority and all of the concurrences except that last one.
- U.S. Park Police officer stops an on-duty Secret Service agent who is waiting in his gov't-assigned vehicle to escort a motorcade. The stop lasts nearly an hour, far longer than it took for Park Police to confirm that the Secret Service agent was indeed an agent. Soon after (and well after the motorcade has come and gone), another park police officer pulls the agent over a second time for using his cell phone while driving (which, given his job, is not illegal). Fourth Circuit: Based on the Secret Service agent's account, seems like those stops were pretty unreasonable. His Fourth Amendment claim can proceed.
- Under Supreme Court precedent, a school district is not liable under Title IX for teacher-on-student harassment unless the district had actual notice of the misconduct and was deliberately indifferent to it. Fifth Circuit: It really sucks that we have to apply that rule to these horrific facts.
- Divers at downtown Houston aquarium are all trained scientists, and when they dive into the tanks to clean them and feed the animals they are conducting "scientific dives," says the Fifth Circuit, which means they are exempt from OSHA rule requiring extra safety equipment. (In fact, the equipment may make the dives less safe in these circumstances).
- In which two-thirds of a Sixth Circuit panel "encourage[s] the interested reader to watch the video for herself" to see if Detroit officers used excessive force putting a wheelchair-bound protester into a police van. Video here. (Check your volume first. It plays automatically.)
- Contrary to what one might believe from reading Agatha Christie, poisoning one's spouse with thallium (a tasteless white powder that looks like salt and makes one's hair fall out) will apparently not yield a mystery insoluble to all save a plucky gentleman-sleuth. The Seventh Circuit has the shocking story, which ought to come as good news to those for whom the stay-at-home lifestyle is wearing thin.
- Detainee at Polk County, Wisc. jail is taken to hospital for (fruitless) cavity search after two other detainees report that she's hiding meth in her cavities. Seventh Circuit: The district court was right to dismiss her Fourth Amendment claims. The jail officials had reasonable suspicion, and the search—while obviously intrusive—was carried out in a reasonable, hygienic manner.
- Following their guilty pleas on drug charges, but before sentencing, two California men catch a break when Congress passes an appropriations rider that prohibits the Department of Justice from spending money to prevent states from implementing their medical marijuana laws. Ninth Circuit: And because the two men were in strict compliance with state law, they're off the hook unless Congress makes a new appropriation. Dissent: The only problem with that holding is that the two men were decidedly not in strict compliance.
- The feds give out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the attorney general withhold grants from so-called sanctuary cities that refuse to share information with the feds about, or allow access to, arrested undocumented immigrants? Seventh Circuit (2018), Third Circuit (2019), Ninth Circuit (2019), First Circuit (2020): No. Ninth Circuit (this week): Still no. But the AG gets a small win as the court, holding that the district court was wrong to issue a nationwide injunction, limits relief to only California. Over at the Second Circuit meanwhile, the court will not rehear its 2019 decision holding that the AG can indeed withhold the funds. Dissent: This refusal is "astonishing," and "I am, frankly, astounded."
- Birmingham, Ala. officer shoots suspect who pointed a gun at the police. After a two-month hospital stay, the suspect is charged with attempted murder and spends 16 months in pretrial detention. The cop who pulled the trigger receives an award for the incident. But wait! A local news organization obtains dashcam video showing that the suspect was on his hands and knees when he was shot and that he did not point his gun at the officers. Charges are dropped. Eleventh Circuit: And the man can sue for malicious prosecution; no qualified immunity.
- In 1995, a lawful permanent resident pleads guilty to resisting a police officer with violence. Under the immigration laws then in force, he remained eligible to seek a waiver of deportation. But in 1997, Congress passes a new law, under which people convicted of certain crimes are no longer eligible for those waivers (now called "cancellations of removal"). And in 2013, the feds commence removal proceedings against the man. Gov't: The 1997 law is retroactive, so the man isn't eligible to seek cancellation of removal. Board of Immigration Appeals: Sounds right to us. Eleventh Circuit: No.
- And in en banc news, the Sixth Circuit will reconsider its decision barring Ohio officials from executing an inmate convicted of murder in 1986 who is (the original panel held) intellectually disabled. (Earlier, the inmate unsuccessfully petitioned for a new trial on the ground that bite mark evidence is applesauce.) The Fifth Circuit (over a dissent), however, will not reconsider its decision that a Houston community college board member who was censured after he accused other members of mismanagement has a First Amendment claim.
Last week, Nashville officials voted to repeal the city's ban on home businesses that welcome clients on site, an especially strange rule for the "Music City" that barred commercial home studios. Imposed in 1998 without debate or explanation, the ban prevented IJ clients Lij Shaw, a musician, and Pat Raynor, a hair stylist, from operating their businesses even though they were conscientious neighbors. They plan to apply for the city's newly minted home occupation permits as soon as they are available. Click here to learn more.