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.
Each state has its own constitution, and each state court has the chance to interpret its own constitution independently from the federal one. One state that's more constitutionally independent than many is Pennsylvania. On Friday, October 16, please join IJ's Center for Judicial Engagement for an online forum on judicial engagement and the Pennsylvania Constitution, featuring many of the state's foremost constitutional scholars and litigators, including a keynote address by blawgmaster Howard Bashman. Plus, free CLE for Pennsylvania lawyers. Register today!
Meanwhile, you can listen to this week's Short Circuit podcast, talking all Pennsylvania, all the time, including some innocuous speculation on whether the state's governor could veto the legislature's appointments to the Electoral College.
- In the mid-1980s, a Biddeford, Me. police officer offered a teenager a ride home from school. Years of alleged sexual abuse ensued. First Circuit: The district court erred when it dismissed the teen's (now adult's) claims as barred by the statute of limitations, since he only recently learned that the officer's supervisors were aware of additional allegations of abuse.
- Penalty-phase jury in Puerto Rico reports that it has not reached a unanimous verdict on whether to impose the death penalty and that, as a result, it understands the court will sentence the defendant to life in prison. First Circuit: If the jury had truly deadlocked, the Double Jeopardy Clause would allow the government to seek the death penalty again. But the verdict here is ambiguous and must be construed in favor of the defendant, meaning the death penalty is barred.
- The president has long sought to keep his tax returns private. And it's not going well for him lately, given the recent New York Times exposé and this week's Second Circuit decision refusing to set aside New York grand jury subpoenas demanding that the president's accounting firm hand over the documents.
- Pocky is a chocolate-covered stick-shaped cookie. Its design makes it work better as a snack: one end is uncoated (to avoid sticky fingers), and the compact shape makes it portable and easy to eat without having to open one's mouth wide. But because that design is useful, says the Third Circuit, trade-dress law does not protect Pocky from competitors. Come for the patent and trademark law primer, stay for the cookie puns.
- The city of Englewood, N.J. requires assisted living facilities to obtain a variance if they want to build anywhere other than a single district that also allows healthcare facilities, hotels, and senior living communities. Does it violate fair housing laws to require a variance to build a 150-bed assisted living facility in a single-family residential district? It does not, says the Third Circuit.
- Anderson County, S.C., deputy sheriff loses control of his patrol car while going at least 38 miles per hour over the 45-miles-per-hour speed limit. He slams into an oncoming car, severely injuring the driver. Fourth Circuit: And he is not entitled to qualified immunity. Dissent: There are a lot of people who don't like qualified immunity, but the majority appears to have forgotten what a high bar it sets.
- Texas drug trafficker—known to friends and associates as "Chief"—claims to have supernatural powers, including "the ability to ward off law enforcement detection of criminal schemes." Astonishingly, he is arrested and charged with drug trafficking. Unhappy with the 48-month sentence his public defender negotiated, Chief decides to go to trial with a lawyer retained by his friends and family. Halfway through the first day of trial, and seeing the writing on the wall, he reverses course and decides to plead guilty, resulting in a 168-month sentence. Fifth Circuit: Which is fine. No downward adjustment for accepting responsibility when you wait that long.
- Texas government watchdog requests press passes to give them access to the floor of the Texas House. After not receiving a final determination for three months, they sue, alleging a First Amendment violation. Meanwhile, the legislative session ends. Fifth Circuit: Moot; "[w]hen time is of the essence, a party must act like it." (NB: There is 100% a parallel universe where the watchdog group did sue immediately, and the case was dismissed as not ripe because there was no final determination.)
- Sixth Circuit: Three judges, three opinions, all of which conclude that a 911 operator can be fired for using the N-word on her Facebook page.
- Police show up at a Felch, Mich. marijuana grow operation with a warrant, and the grower, believing his operation is legal, offers to show them around. Prosecutors later allege the facility wasn't so legal after all. Sixth Circuit: Having offered the police a tour, the defendant cannot now complain that they exceeded the scope of the warrant.
- Kentucky man is arrested for assaulting his girlfriend and being a felon in possession of a firearm. At the police station, he becomes violent and bites a police dog "because th[e] dog bit me and that was the only way to defend myself." He is convicted, is sentenced to 10 years' imprisonment, and appeals. Man: I obviously was not competent to stand trial, much less represent myself; remember that time I bit the dog? Sixth Circuit: Notwithstanding "the newsworthy act of biting a dog" and other unusual behavior, the man was competent and his conviction is affirmed.
- U.S. District Court for the Western District of Wisconsin (September 21): Wisconsin's deadline for online and mail-in registration is extended from October 14 to October 21 and the deadline for receipt of mailed ballots is extended from Election Day to November 9. Seventh Circuit (September 29): The Wisconsin legislature lacks the authority to appeal the district court's order. Seventh Circuit (October 2): Wait, was that right? Wisconsin Supreme Court (October 6): No; the Wisconsin legislature can indeed defend the state's laws in court. Seventh Circuit (October 8): In that case, the district court's order is stayed. Judge Rovner, dissenting: "Good luck and G‑d bless, Wisconsin. You are going to need it."
- Following in the path of then-Judge Alito, the Seventh Circuit's Judge Scudder (in chambers) pens an opinion on the circumstances in which an amicus brief may add value to the decisional process. (No word on the wisdom of parties' filing briefs opposing amicus participation.)
- It is a federal crime for custodians to sexually abuse people in "official detention," a term that extends to detentions "pending . . . deportation." Youth care worker at facility for unaccompanied noncitizen children is convicted of sexually abusing his charges. Man: The children's removal proceedings were still ongoing when I abused them. So deportation wasn't inevitable at that point. So they weren't being held "pending . . . deportation." Ninth Circuit: That is decidedly wrong.
- In more COVID- and election-related news, two-thirds of an Eleventh Circuit panel stays a district-court order directing Georgia to accept absentee ballots that are both postmarked by and received within three days after Election Day.
For years, the NYPD had a practice of threatening to evict people who had done nothing wrong, simply because a crime occurred at or near their home or business. Police would then use that threat of eviction to extract agreements waiving constitutional rights. (Parents would have to agree to bar their children from their homes; businesses would have to agree to warrantless searches.) In 2016, IJ sued on behalf of victims of these practices, and shortly afterward, New York City agreed to overhaul its law. But that change did nothing for countless past victims. This week, a federal court approved a settlement order preventing the city from enforcing all agreements it had extracted under its old law, restoring thousands of New Yorkers' constitutional rights. Click here to learn more.