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.
Over at The Washington Post (paywall), IJ's first-ever client, African-style hair braider Pamela Ferrell, is profiled at length about a different chapter in her life. "I never want to feel what that officer — whose face was so full of hate — felt. Then [hatred] gets your soul. I won't give it that."
New on the Short Circuit podcast: Special guest Molly Brady of Harvard Law tells an untold story of how NIMBYs tried to turn neighbors into nuisances, and when they failed turned to zoning instead.
- The Smoot-Hawley Tariff Act of 1930 requires all "vessel[s] arriving in the United States" to maintain (and publicly disclose) a manifest recording information about the just-completed voyage and the cargo. Data-aggregating companies file FOIA suit against the federal government, contending that the Act gives them a right to access airplane manifests too. Second Circuit: The statute is a mess ("an amalgamation of language from incompatible statutes"), but it applies to waterborne vessels only, not aircraft. No word on whether it applies to seaplanes. Or airships.
- Two Pittsburgh brothers are stopped on the street by a police lieutenant who suspects (incorrectly) that they are carrying synthetic marijuana. Five other police officers soon join the lieutenant. Finger-pointing altercation ensues, and the police slam one brother into a wall and tase the other. Third Circuit (over dissent): No qualified immunity for the body-slamming officer, though the lieutenant is off the hook for failing to prevent the body slam.
- United States Park Police officer stops truck driver on the George Washington Memorial Parkway, where commercial vehicles require permits. He smells marijuana, finds marijuana, and arrests the driver. Fourth Circuit: Yet he had no lawful reason to stop the driver. Merely suspecting that he might not have had a permit is not grounds for a traffic stop. Suppress the evidence.
- After federal agents seize a man's truck, he waits over two years for a hearing before a judge. Does due process require a more prompt post-seizure hearing? Fifth Circuit: The Constitution requires no such hearing; and the Second Circuit's contrary holding (in an opinion written by then-Judge Sotomayor) should be limited to the specific statute at issue in that case. (This is an IJ case. We will be filing a cert petition.)
- After unruly, possibly armed man declines to raise his hands with sufficient alacrity, Fort Worth, Tex. officer employs a "distractionary strike" to gain compliance, allegedly breaking the man's nose. Fifth Circuit: A reasonable jury might review the bodycam footage and think that was excessive force.
- Dearborn, Mich. officer: I shot the man because he was standing over me, trying to get my gun, and I realized the gun was loose in its holster. The man's estate: That makes no sense. There was nothing wrong with the safety mechanisms on the officer's double-lock holster, and the bullet trajectories indicate the victim was lying on the ground when he was shot. Sixth Circuit: All of which presents a fact question for the jury. No qualified immunity.
- In May, the Sixth Circuit stayed a district court order directing Ohio to (among other things) dispense with the ink signature and witness requirements for ballot initiative petitions. Sixth Circuit (September 2020): We still think the district court was wrong, so its preliminary injunction is reversed (and marijuana decrim is rather less likely to appear on some local ballots). Also, a soft circuit-split: the Sixth Circuit breaks with the Eleventh in electing to spell Anderson v. Celebrezze correctly. Which is unsurprising since respondent Anthony J. Celebrezze Jr. was the son of Anthony J. Celebrezze Sr., a Sixth Circuit judge from 1965 to 1998.
- District Court: "I disagree with the Sixth Circuit. . . . Maybe the Sixth Circuit will reverse me again, but I can't impose a sentence on [the defendant] that . . . does not make sense to me." Sixth Circuit: Vacated and remanded for reassignment to a different judge.
- It is clearly established that a government employee cannot grope an inmate. It is clearly established that a government employee cannot grope a fellow government employee. But what about just groping ordinary folks? That calls for qualified immunity, says two-thirds of this Ninth Circuit panel. (It's clearly established now, though.)
- It is clearly established that if an inmate's health significantly deteriorates after the inmate is seen by jail medical staff, guards must summon medical staff anew. So, says the Sixth Circuit, Macomb County, Mich. guards who allegedly watched a man (who was in jail for being unable to pay a $772 court fine) lie naked and convulsing on the floor of his cell for two days before his death are not entitled to qualified immunity.
- District Court: The database systems ICE uses to determine whether individuals who have recently been arrested by local authorities are subject to deportation are not reliable enough to create probably cause. Ninth Circuit (over a dissent): Reversed. The district court needs to reconsider whether reliability issues with some of the databases necessarily mean the whole system is unreliable. Separately, it was error to hold that detainees are not entitled to a post-detainer review by a neutral magistrate on whether there is probable cause to deport them.
- In 1990, Congress created a program to temporarily allow foreigners to live here if they couldn't safely return to their home countries because of natural disasters, armed conflicts, or other calamities. In 2017 and 2018, the Dep't of Homeland Security closed the program to citizens of Sudan, Nicaragua, El Salvador, and Haiti. Ninth Circuit (over a dissent): Which is something Congress gave DHS broad discretion to do. Moreover, there is no evidence the policy change was driven by the president's alleged racial animus. The district court's nationwide preliminary injunction is vacated.
- Woman alleges that Pontotoc County, Okla. jailer demanded she go to the control tower where he had sex with her while she cried, fearing she would face additional charges if she resisted. Jailer: It was consensual. Regardless, it's not clearly established that sex with an inmate is inherently coercive. Tenth Circuit: No qualified immunity. (He was also convicted of rape, though the Tenth Circuit did not rely on that in reaching its decision here.)
- It is clearly established that police can't plant evidence on people, says the Eleventh Circuit. So a Meriwether County, Ga. officer who says she did not plant pot at the plaintiff's home can tell it to the jury. No qualified immunity.
- Allegation: Albany, Ga. officer invokes nonexistent eyewitness, gets innocent man charged with felony murder. The man spends several months in jail, but the charges are dismissed when he agrees to testify against the remaining co-defendants. District court: Which doesn't count as the charges being resolved in his favor, so he can't sue the officer for malicious prosecution. Eleventh Circuit: Not necessarily. The case can go on.
- And in en banc news, the Ninth Circuit will not reconsider its earlier holding that the First Amendment does not protect the right of a labor union to encourage neutral employees to strike for the purpose of furthering the union's labor negotiations. Six judges dissent, pointing out that this would seem to conflict with everything the modern Supreme Court has said about the First Amendment. And by an 8–7 vote, the Sixth Circuit will not rehear an earlier panel decision about the appropriate application of harmless-error review in a federal habeas case brought by a prisoner who was partially shackled during trial.
Friends, in 1873, the Supreme Court ruled that the "right to use the navigable waters of the United States" is possessed by all Americans and protected by the Privileges or Immunities Clause of the 14th Amendment. But that right—and the constitutional clause that protects it—have largely been ignored ever since. This week, IJ asked the Supreme Court to change that. For decades, Jim and Cliff Courtney have tried to provide boat transportation across 55-mile-long Lake Chelan in Washington state, but state officials have stymied them at every turn through a protectionist licensing law. Click here to read the cert petition. And click here for a lovingly crafted podcast episode about the case.