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: PACER charges and publicly charged universal injunctions.
- "Once again, we are called upon to explain how a federal government in which Puerto Ricans have no vote may regulate them more extensively than it can most every other American citizen." So begins this First Circuit opinion.
- If true crime is your thing, check out this story of a Philadelphia drug kingpin who arranged from jail for his underlings to firebomb the home of a confidant-turned-informant in 2004, killing all six in the house, four of whom were children and none of whom were the former confidant. The kingpin, appropriately named Savage, is convicted of a dozen murders—one shy of the state record—and receives the death penalty. The Third Circuit affirms in its first direct appeal in a capital case in nearly a century.
- As honorably discharged Marine waits to catch a bus to visit his recently hospitalized sister, Columbia, S.C. police arrest him, charge him with congregating on the sidewalk, a city code violation that is prosecuted by the cop who issued the citation. He awaits trial for more than 3.5 years until, on the eve of trial, the arresting cop drops the charges. Fourth Circuit (over a dissent): Might be malicious prosecution—an unreasonable seizure claim with some tort elements.
- The Texas Medical Board is apparently a big fan of searching medical clinics—including private patient records—with administrative subpoenas that do not allow for judicial review and demand immediate compliance. The Fifth Circuit denounced this approach in 2018 and 2019. Here, a doctor alleges that board investigators used this process to illegally obtain files from his clinic that they then used to fabricate evidence and get him indicted on trumped-up charges of running a pill mill (which were dismissed). Fifth Circuit (2020): Though there's no constitutional right to be free from abuse of process or malicious prosecution (at least in the Fifth Circuit), the doctor might have valid due process and Fourth Amendment claims.
- In the Fifth Circuit, a Louisiana man convicted of murder by an 11–1 jury verdict will not get a new trial—even though the Supreme Court held last term that this sort of nonunanimous conviction is unconstitutional. You see, the prisoner already argued that his nonunanimous conviction was unconstitutional back in 2008, so he can't make the same argument again. No exceptions.
- In 1981, the Supreme Court ruled the military's male-only draft is not unlawful sex discrimination, in part because at the time women were prohibited from serving in combat. Plaintiffs: Well, that key fact has changed. Is the male-only draft unconstitutional now? District court: Yes. Fifth Circuit: No.
- Holdout juror in a murder case just can't be persuaded and is fed up with being badgered by other jury members, so she contacts a lawyer, who appears in court to inform the judge about the conflict. After the judge and the lawyers debate the proper course, the judge removes the juror. An alternate juror is seated, and the jury returns a guilty verdict within 90 minutes. A Sixth Amendment violation? Sixth Circuit: No. She was removed for violating the judge's order not to discuss the case with anyone, not because she was a holdout.
- Ohio chiropractors challenge 2019 law that prohibits them from directly soliciting victims of accidents or crimes until 30 days after the injury, alleging that the law violates their First Amendment rights. Sixth Circuit: We upheld an identical prohibition from Tennessee back in 2004, and we don't see any reason to change our minds now.
- Oakland County, Mich. investigator mistakes username "anonymousfl" for "anonymous" on social media app Kik, leading to arrest, extradition, and five weeks in jail for NYC man who did not blackmail a minor for naked photos. Sixth Circuit: The man's claims against the investigator should not have been dismissed. Judge Thapar, concurring, urges in-circuit litigators and judges to read the fine print before calling claims against unreasonable pretrial detention "malicious prosecution."
- School bus arrives at stop seven minutes early, and 13-year-old misses it. He returns home, tells his father, rides his bike to school in the dark and in heavy traffic. He's struck by a truck and severely injured. Can his parents recover from the school bus company? The jury found the parents 56% at fault (so they can't win due to Tennessee's comparative negligence law), and there's no grounds for a new trial, so no, says the Sixth Circuit (over a dissent).
- Illinois prison guards line up 200 female inmates, force them to stand naked in groups, remove sanitary products, and undergo body and cavity searches—all in full view of nearby inmates and male prison guards not involved in the searches. Seventh Circuit (2019): Longstanding circuit precedent says the Fourth Amendment doesn't apply to visual inspections. Seventh Circuit (en banc, 2020): Not anymore. Inmates have a constitutionally protected privacy interest in their bodies (eliminating a circuit split on the question).
- "Shocking" allegations of football injuries and the medications given to manage them can justify a suit against the NFL, holds the Ninth Circuit. Although a putative class of former players did fumble some of their theories, the basic claim goes forward: that the NFL negligently allowed the improper distribution of drugs to keep injured players on the field.
- After a witness in a civil case testifies that two of the other witnesses are not legal citizens, Billings, Mont. Justice of the Peace says, "call me a deputy. I have two illegals sitting outside. I want them picked up." One of the men is picked up and transferred to ICE custody, where he remains for three months until the deportation proceedings against him are dropped. He sues the JP and the deputy who arrested him for violating his Fourth Amendment rights. Ninth Circuit: No qualified immunity. Mere illegal presence in the U.S. isn't a crime, so there was no reasonable suspicion to justify detaining the witness.
- In 2018, the FCC adopted a new set of rules intended to speed up the nationwide implementation of 5G wireless broadband. The rules restrict how local gov'ts can regulate 5G facilities, including how the facilities look, the fees localities can charge for installation, and how long the localities can take to consider an application for installation. They also require localities to allow the new facilities to share existing utility poles. Local gov'ts: Which is an unconstitutional taking. Ninth Circuit (over a dissent): Not so, but some of the rules governing "aesthetics" are prohibited by statute and are arbitrary and capricious.
- After socially transitioning from female to male, Florida high school student seeks permission to use the boy's bathroom. The school says he can use the girls' bathroom or a single-stall gender-neutral bathroom. The student sues, alleging violations of the Equal Protection Clause and Title IX. Eleventh Circuit: And he's right. The bathroom policy discriminates on the basis of sex. Dissent: Even RBG (while a professor) has said that separating bathrooms on the basis of biological sex is an example of permissible sex-based regulation.
- The Georgia Board of Dentistry, 9 of whose 11 members are dentists, adopts a rule that digital scans of teeth may only be taken if a licensed dentist is on the premises. Manufacturer of custom orthodontic trays sues, alleging that the policy is anticompetitive self-dealing, in violation of federal antitrust law. Eleventh Circuit: And the manufacturer's claims can proceed; the mere potential for the governor to veto the new rule is not enough to create state-action immunity. Dissent: We shouldn't even be hearing this appeal because the district court's denial of the dental board's motion to dismiss wasn't a final appealable order.
- Some of baseball's great players have been Cuban-born. But, for years, players born in Cuba had to first move to a third country and establish residency before moving to the U.S. to play ball. A sports agent and a trainer decide to facilitate this process in exchange for one-third of the players' contracts (standard agents take 5%). This approach involved fraudulent documents and payments to Mexican smugglers to stave off violence. One player brought in this way, Chicago White Sox all-star José Abreu, ate the cover of his fake passport and washed it down with a beer on the plane on his way to the U.S. and a $68 mil contract. Eleventh Circuit: And this is human smuggling. Convictions affirmed.
- A Georgia sheriff violated the rights of a pretrial detainee by allegedly leaving him in a hot van, where he passed out from the heat. But without in-circuit caselaw about a precisely unconstitutional duration at a precisely unconstitutional temperature, the sheriff gets qualified immunity. The Eleventh Circuit will, however, allow a trial on a claim that the sheriff was deliberately indifferent to the detainee's medical needs. No reasonable officer would just ignore an unconscious prisoner.
- And in en banc news, the Ninth Circuit will not reconsider its decision that the district court must consider alternative grounds for federal jurisdiction, and, if there are none, remand a lawsuit filed by Oakland and San Francisco against fossil fuel producers (alleging that the production of greenhouse-gas-emitting fuels is a public nuisance under California law) back to state court.
Though there is a pressing need for home health services among Louisville, Kentucky's Nepali-speaking community, last year state health officials prevented a new home health agency with nurses and aides who understand the Nepali language and culture from opening up shop—solely to protect existing agencies from competition. Today, a federal district court said IJ's suit can proceed because Kentucky's law may not survive rational basis review. "But at least this much about that standard should be clear: When a plaintiff's evidence proves that a statute makes worse the very interest it purports to serve, as well as any other legitimate state interest, the statute is arbitrary, unreasonable, irrational, and unconstitutional." Click here to learn more.