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.
Way back in 1983, in Bearden v. Georgia, the U.S. Supreme Court ruled that judges must inquire into defendants' ability to pay before jailing them for not paying court-ordered fines and fees. The practice is widespread today, however, spreading misery and hardship among the least fortunate. (One guy we know calls Bearden the "25-hour speed limit" of constitutional law because no one follows it.) Please do click here for a look at model legislation that would codify Bearden and curtail the abuse of fines and fees.
New on the Short Circuit podcast: Can a city hold on to your car for three years for no reason? Plus, the costs of campaign finance disclosure.
- Gitmo detainee, a tribal sheikh and Yemeni citizen, has been held without trial going on 16 years. A violation of the Due Process Clause? D.C. Circuit: Whether it's "procedural" or "substantive" due process, the Clause does not apply to aliens detained outside the sovereign territory of the United States.
- Connellsville, Penn. police accuse a woman of murder on the basis of bite-mark evidence and accusations from an ex-boyfriend and two inmates. But bite-mark evidence is not supported by science, the men's statements conflict, and the ex-boyfriend recants on the stand. A judge dismisses the charges. Undeterred, the DA recharges her a few months later. She's convicted and then exonerated after 11 years in prison. Third Circuit: The then-DA (now judge) is entitled to absolute immunity for approving the criminal complaint and to qualified immunity for directing police to investigate bite-mark evidence and sitting by while police engaged in a reckless investigation. Neither of the latter two had been clearly established as unconstitutional at the time of the investigation.
- Following a sniper attack on a Pennsylvania State Troopers barracks, troopers learn of a man with a rifle walking down a highway 15 miles away. They identify him, arrest him on a Florida arrest warrant, and then charge him with another crime before dismissing the Florida charges. Man: A trooper fabricated evidence to support the Florida charge and my arrest, which violates the Fourth and Fourteenth Amendments. District court: It didn't violate the Fourth Amendment. Third Circuit: And the Fourteenth Amendment doesn't apply to an unlawful arrest claim before a court appearance. (Another man was later convicted of the sniper attack.)
- Transgender high-school student challenges school policy that requires him to use the bathroom of his birth-assigned sex (female) or a private unisex bathroom. The student sues, alleging violations of Title IX and the Fourteenth Amendment. Fourth Circuit: "The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past." Dissent: "The majority opinion devotes over 20 pages to its discussion of [the student's] transgender status, both at a physical and psychological level. Yet, the mere fact that it felt necessary to do so reveals its effort to effect policy rather than simply apply law."
- Congress enacted the Anti-Riot Act in 1968, an era, observes the Fourth Circuit, "not unlike our own." And while the law sweeps up substantial amounts of constitutionally protected speech, including advocacy intended to "promote" or "encourage" a riot, the unconstitutional provisions can be severed from the remainder—which, in turn, can permissibly be applied to two California residents who traveled through interstate commerce to attend the "Unite the Right" rally in Charlottesville.
- Ronnie Wallace Long has spent the last 44 years in prison serving a life sentence for rape, a crime he insists he did not commit. But now it is undisputed that the state withheld evidence including: (1) evidence of lies by two police witnesses; (2) the disappearance of a rape kit; and (3) a "legion" of test results that did not implicate Long. Is Long entitled to habeas relief? Fourth Circuit (en banc): The trial court needs to hold a hearing on actual innocence ASAP. Concurrence: No need for that; no reasonable jury could have convicted if it'd known this evidence. Dissent: "[I]njustice may have occurred," but it's debatable, so habeas relief should be denied.
- Allegation: After a chain of Texas liquor stores refuses to pay $8 mil to resolve violations allegedly uncovered during an investigation by the Texas Alcoholic Beverage Commission, the TABC sues, seeking cancelation of all 164 of the chain's permits and $713 mil in civil penalties. An administrative law judge rules for the chain on all charges but one, for which he recommends a warning. The chain sues the TABC, and the district court, relying on a variety of immunity doctrines, dismisses the case. Fifth Circuit: Most of which were correct. But the court was wrong to dismiss claims based on the TABC's alleged concealment of evidence, so back you go.
- Because of the high cost of treatment for hepatitis C, Tennessee prison officials provide medication only for inmates with the most severe and advanced cases. Sixth Circuit: No doubt the best practice would be to treat every sick prisoner, but that is not always possible in the real world of limited resources. No violation here. Dissent: If prisons cannot afford to house inmates in conformity with the Constitution, those inmates should be released.
- Protesters block Columbus, Ohio intersection for 45 minutes, begin to disperse after police pepper spray them. One protester lingers but then retreats, hunching over from the effects of the pepper spray. An officer allegedly puts a hand on her shoulder, stopping her briefly, and sprays her directly in the face. Excessive force? Sixth Circuit: There's no prior case that says so (nor is there one now), so qualified immunity. But her state law claims can proceed.
- The City of Oakland sues Wells Fargo, alleging that the bank has a practice of issuing predatory loans to black and Latino residents, which violates the Fair Housing Act and has harmed the city by reducing property tax revenue and increasing city expenses (to deal with foreclosed properties). Ninth Circuit: The claim for damages based on reduced property tax revenue can go forward, but the city hasn't plausibly alleged that the bank caused municipal expenses to go up.
- Allegation: Kennesaw, Ga. pet store sells woman a puppy infected with parvovirus, a sometimes-lethal disease that the store certified the dog was free of. When she takes the dog to a store-affiliated vet, he provides no care, doesn't inform her of its demise, and falsely claims not to have the body. Eleventh Circuit: Sorry, but the Racketeer Influenced and Corrupt Organizations Act doesn't provide a cause of action here.
- Mentally ill soldier deserts his post in Afghanistan in a misguided bid to trigger a search that he believed would end with him getting face-to-face time with a commanding general he wanted to address. Instead, he's captured by the Taliban and spends several years in a small iron cage. Court of Appeals for the Armed Forces (over partial dissents): Public comments by President Trump and the late Senator McCain did not place an intolerable strain on the public's perception of the fairness of his court martial (which resulted in a dishonorable discharge and $10k forfeiture).
Friends, did you know that Pennsylvania law requires applicants for cosmetology licenses to prove that they're good people, yet barbers in the same salon don't have to? That meant dozens of applicants with unrelated criminal records couldn't get licensed, even though Pennsylvania teaches cosmetology in prisons. IJ thinks this distinction is absurd, and earlier this week, the Commonwealth Court of Pennsylvania agreed. This "good moral character" requirement violates Pennsylvania's promise of equal protection, and the state can no longer enforce it. And as a part of wider legislative reform, good moral character requirements will soon be removed for other professions as well. It's a two-part win for freedom in the Keystone State. Click here to read more.