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.
Recently the Eleventh Circuit upheld Florida's system of allowing former felons to get back their right to vote, even though it makes it very hard for former felons to actually do that. Critics have rightfully decried the ruling, but, unfortunately, it's based on decades of Supreme Court precedent that many of those same critics have likely endorsed. Director of IJ's Center for Judicial Engagement Anthony Sanders tells us how supporting the extreme version of the rational basis test in some cases but not others is a bargain with Leviathan that you just can't win. Click here to read.
- After Congress declined to appropriate funding to Build The Wall, the president moved some money around to build some of it anyway. House of Representatives: Can't do that. D.C. Circuit: "It is a core structural protection of the Constitution—a wall, so to speak, between the branches of government that prevents encroachment of the House's and Senate's power of the purse." Therefore, the House has standing to sue. The case should not have been dismissed.
- Police planning a no-knock raid on a suspected drug dealer observe him leaving home around 9:00 p.m. Without checking whether the suspect had returned, police conduct the raid the next morning. Within seconds of breaching the front door, police shoot an unarmed houseguest in the stomach. Jury: The officer wasn't negligent, but the city was. Trial court: The municipality didn't have a "special relationship" with the plaintiff and therefore had no duty to avoid negligently getting him shot in the stomach. Second Circuit: Not so clear; we'll let the New York Court of Appeals straighten this out.
- Technology company rescinds job offers after background checks turn up past felony convictions. Two would-have-been employees sue, claiming the company's policy has a disparate impact on African Americans. Second Circuit: Plaintiffs would have us assume that, because African Americans in general are more likely to have felony convictions, the same holds true for African American web developers. That assumption is not plausible or even logical, so the complaint must be dismissed.
- Grim reading: At the turn of the 20th century, German colonial and military authorities annihilated about 100,000 people in what is now Namibia, killing 80% of the Ovaherero and 50% of the Nama tribes and subjecting many more to slavery, concentration camps, and live medical experimentation. Second Circuit: These terrible wrongs can't be addressed in U.S. courts.
- After praising the Christchurch massacre online, white supremacist is interviewed by the FBI. He lies to agents about owning a gun, and he's convicted of making a false statement. Among his conditions of supervised release: monitored internet use and no promoting violence online (or posting at all on violence-promoting websites). Second Circuit: Yes, he was convicted of lying to the feds about a gun, but, in the broader context, these conditions are appropriately related to the crime. The "violence" condition, however, is too vague.
- Stay in your apartment, says Philadelphia 911 operator, and wait for the fire department to come rescue you. But then the 911 operator gives the fire department a wrong address and neglects to mention there's a family still in the building. Rescue never comes. Third Circuit: Gov't owes a duty of care when it itself creates a danger; but that rule does not apply here, where the operator merely failed to act. (Two judges separately confer, find this conclusion "troubling" not because it denies liability but because liability might conceivably be imposed in some other case.)
- Allegation: Acting on the advice of his lawyer, Pennsylvania man stands up at a sheriff's auction to inform bidders that he has an unrecorded interest in a property up for auction. An attorney for the sheriff's office and an officer promptly place him in a chokehold, stun him, and drag him from the room for violating their unwritten "no comment" rule. A First Amendment violation? Third Circuit: The auction is a nonpublic forum, and the "no comment" rule is a reasonable way to move things along. Probably didn't need to rough the guy up, though.
- In which Judge Willett, concurring, again expresses himself of the view that "courts should attempt to provide greater judicial guidance" in qualified immunity cases by "explaining whether a right was in fact violated, not merely whether a rights violation was clearly established." (Nota bene: A pending cert petition authored by, inter alios, the MacArthur Justice Center invites the U.S. Supreme Court to align itself with this view.)
- Courtesy of the Fifth Circuit, here's a reminder that it doesn't matter if subject-matter jurisdiction wasn't raised below. Thus, this challenge to state billboard regulations—removed to federal court by the gov't, which raised subject-matter jurisdiction just 11 days before appellate argument—is headed back to state court.
- After more than 1,300 cities and counties file lawsuits against opioid manufacturers, the cases are consolidated in the Northern District of Ohio. Attorneys representing 51 of these plaintiffs attempt to certify a "negotiation class" consisting of every city and county in the United States. The trial court certifies the class; objecting municipalities appeal. Sixth Circuit: However "innovative and effective" such a class might be in resolving mass tort claims, it's not allowed under the Federal Rules. Dissent: The Federal Rules are about making it easier to resolve cases, and that's how we should interpret the class certification rules.
- After sustaining a blow from a baseball bat, would-be robber is arrested and held in Franklin County, Ky. jail. In the days that follow, he consistently vomits and suffers two seizures before being taken to hospital (where he suffers a third seizure). Sixth Circuit: The jail's medical personnel were not deliberately indifferent to the man's medical needs, so his constitutional claims were rightly dismissed. Partial dissent: For three of the nurses, a jury should decide whether they acted recklessly.
- In 1971, a hippie is murdered in Nederland, Colo. The main suspect is the town's marshal, but he's not charged until confessing at a nursing home in 1997. Twenty years later, one of the hippie's friends decides "to take care of some old business" by leaving a homemade bomb at the Nederland police station. (The bomb squad neutralizes it.) He's sentenced to 27 years. Tenth Circuit: Resentence him. Among other things, shouldn't have applied that terrorism enhancement.
- Eleventh Circuit: It violates due process for judicial actors to profit from convictions and sentencing decisions and that also goes for quasi-judicial actors, like private probation companies. So a lawsuit against a probation company used by Gardendale, Ala. to impose conditions on probationers and extend their terms of probation, thus increasing the fees the company could extract from them, should not have been dismissed. (IJ filed an amicus brief urging this course of action.)
- And in en banc news, the Fourth Circuit will not reconsider its decision that a school district violated Title IX and the Constitution when it prohibited a transgender male student from using male restrooms. Judge Niemeyer concurs in the denial on the grounds that the panel opinion is so wrong the Supreme Court should take the case directly. Judge Wynn concurs on the alternative ground that the panel opinion is so right that there's nothing to rehear.
Priscilla Villarreal is a one-person news phenom in Laredo, Texas. Going by "Lagordiloca" (an endearing Spanish nickname meaning "the big crazy lady"), she's drawn national attention for her bold newsgathering and unfiltered reporting. As a critic of local government and police, she's also drawn their ire. So they began a campaign of retaliatory actions against her, culminating in her arrest and prosecution under an obscure and seldom used statute against "misuse of public information." But Villarreal didn't misuse anything. All she did was ask a confidential police source to corroborate facts about breaking news stories. That's what Pulitzer Prize winners do every day. So Villarreal sued for retaliatory arrest. But a federal district court granted the officials qualified immunity, holding that they could plead ignorance of the First Amendment by pointing to their reliance on a statute—no matter how obviously unconstitutional or inapplicable. Now, IJ has filed an amicus brief in support of Villarreal, urging the Fifth Circuit to recognize that the district court's holding is dangerous to a free society and that qualified immunity cannot shield officers who enforce blatantly unconstitutional laws or criminalize core First Amendment activity.