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.
This week, in Torres v. Madrid, the Supreme Court considered whether a woman who was shot in the back by plain-clothed police officers may bring a Fourth Amendment challenge to the shooting, or if the Constitution does not apply merely because she was able to drive away immediately after being shot. If the Supreme Court declares that Roxanne Torres wasn't "seized" by the officers' barrage of gunfire, then she will be denied her day in court to determine whether the officers' violence was reasonable—and so will any other individual who is not immediately incapacitated or killed by police violence. As IJ and other civil rights groups noted in a joint amicus brief, a ruling against Torres would make police effectively immune in a broad range of excessive force cases. Over at Forbes.com, IJ's Nick Sibilla has more.
- Butterflies know no borders, but the feds plan to build a border wall through a butterfly sanctuary. Federal agents station themselves at the property, declare it off limits to employees and visitors alike, and begin widening roadways and cutting trees. D.C. Circuit: Butterflies may go where they want, but governments need to provide due process before they take over private property.
- American banknotes are unusual in that they are all the same size and texture and nearly identical in color—all of which presents a problem to people who are blind. Thankfully, in 2008, a federal judge entered an injunction requiring the Treasury Department to incorporate appropriate changes to paper currency no later than the next redesign of each denomination. Treasury: Sounds good, we'll get back to you in the 2030s. D.C. Circuit: Which is fine.
- Pennsylvania prohibits those who have been committed to a mental institution from possessing firearms. Two such persons sue. Allegation: The ban strips us of our Second Amendment rights without due process. Third Circuit: No dice. Once a physician has determined that someone is a danger to himself or others—making him eligible for commitment—that someone "has joined the class of those historically without Second Amendment rights." Judge Fisher (concurring in the judgment): I wouldn't decide whether committees have no Second Amendment rights, because even if they retain Second Amendment rights, Pennsylvania has supplied enough process to deprive them of those rights.
- Inmate accuses South Carolina guard of sexual misconduct. The next day,
theanother guard places the inmate in administrative segregation. Coincidence? Fourth Circuit: Unlike some other circuits, we place the burden on the guard to defeat liability by proving she would have made the same decision even absent a retaliatory motive. But we can't say at summary judgment whether the guard made the necessary showing, so this case is remanded for trial.
- In July, the governor of Texas issued a proclamation providing voters an extra six days for early in-person voting and an extra 40 days to hand-deliver their absentee ballots (in addition to the option of mailing in ballots). Some counties sought to add multiple delivery locations for the ballots, but the governor stepped in the way. And that does not restrict voting options in violation of the right to vote, says the Fifth Circuit. Judge Ho, "grudgingly" concurring: The governor should've left rewriting election laws to the legislature rather than doing it himself.
- In July, the governor of Texas issued an executive order mandating masks in public areas but carving out an exemption for people who are voting or assisting with the voting process. Plaintiffs challenge this exemption (among other voting-related procedures). Fifth Circuit: For most of their claims, the plaintiffs sued the wrong defendants because the governor and the secretary of state have no connection to enforcing the executive order or the other challenged laws. But just maybe, the district court could invalidate the mask mandate's exemption for voting. On that point, the case may proceed.
- Inmates at Navasota, Tex. geriatric prison allege that the prison's COVID response is legally and constitutionally inadequate. The district court issued a preliminary injunction in the spring imposing a detailed protocol on prison officials. Fifth Circuit (April): The injunction is stayed. Fifth Circuit (June): The injunction is vacated. Apparently undeterred after an 18-day trial, the district court issues a permanent injunction requiring prison officials to follow specific procedures to limit the spread of the disease. The list differs in some ways from the original; among other things, it requires weekly testing with results within 48 hours. Fifth Circuit (October): The injunction is stayed.
- Second-trimester abortions are most commonly conducted via the dilation and evacuation procedure. The doctor first dilates the cervix and then uses suction or forceps to remove the fetus. The body typically separates during the removal, as it is larger than the cervical opening, resulting in "fetal demise." Texas passes a law requiring doctors to first "ensure fetal demise" in utero. The Fifth Circuit rejects the new law while (over a "forthcoming" dissenting opinion) detailing recent SCOTUS abortion caselaw. Splitting from the Eighth Circuit, The court says that Justice Roberts' concurrence last term doesn't alter the standard that courts apply to abortion restrictions.
- Evidence room manager discovers that a Saginaw County, Mich. officer is misusing forfeited funds and improperly keeping them "off the books." When he reports his concerns up the chain, he is reprimanded and demoted. Sixth Circuit: Since the evidence room manager was speaking within the scope of his public employment, he cannot pursue a First Amendment claim.
- Tennessee allows some voters to vote absentee by mail. To do so, a voter must submit a formal request to county election officials between seven and 90 days before the election; the request must contain a signature, which officials compare to the one on file to ensure they match. Completed absentee ballots must be accompanied by a signed affidavit, and officials once again compare signatures. Does the second signature verification infringe the right to vote? Sixth Circuit: The plaintiffs failed to show that they will be harmed by the law in the upcoming election, so we don't have to answer that. Dissent: "I will not be a party to this passive sanctioning of disenfranchisement."
- Indiana counts an absentee ballot only if it is received by noon on Election Day. District court: Given the pandemic, that deadline must be extended by 10 days. Seventh Circuit: "[A]s long as the state allows voting in person, there is no constitutional right to vote by mail." The district court's injunction is summarily reversed.
- Uncle calls Warren, Ark. police on nephew to report theft of gun, bullets, prescription medication; he tells police to expect a fight. Police stop the nephew and pat him down, discerning no contraband. (The officer missed a loaded magazine and some loose bullets.) But as they try to handcuff him, he takes off. An officer shoots him in the back almost immediately. Eighth Circuit: The nephew can't sue. "[I]t was not clearly established at the time of the shooting that a pat down that removes nothing from a suspect eliminates an officer's probable cause that the suspect poses a threat of serious physical harm."
- Members of the Navajo Nation, residing in Apache County, Ariz., challenge the state's deadline for receipt of mail-in ballots (7:00 p.m. on Election Day). District court: No preliminary injunction because the plaintiffs' Voting Rights Act claim is unlikely to carry the day. Ninth Circuit: Actually, the plaintiffs lack standing because they failed to allege that they intend to vote in the 2020 election or to vote by mail.
- Simi Valley, Calif.: No mobile billboards! Unless they're on an authorized emergency, construction, repair, or maintenance vehicle. Ninth Circuit: We struggle to identify a content-neutral justification for the authorized vehicle carve-out, and the city offers none. Ultimately, it appears officials prefer these "authorized" speakers because they prefer these speakers' message.
- As part of their crowd control efforts, law enforcement officers in Portland, Ore. have recently employed tactics that force reporters and legal observers from the streets. Plaintiffs: Which violates our First and Fourth Amendment rights. District court: Yeah, knock that off. Ninth Circuit (over a dissent): No need for an emergency stay of the district court's preliminary injunction. Officers may not "suppress legitimate First Amendment conduct as a prophylactic measure."
- If you spot a fellow with a "very large and obvious bulge," is it reasonable to suspect he's packing? Two-thirds of this Ninth Circuit panel say yes.
- When Congress declined to appropriate money to build the border wall, the Trump Administration declared an emergency and instructed the Department of Defense to construct the wall itself using other funds. Sierra Club: This particular national emergency does not meet the statutory criteria required for the DOD to undertake construction projects. Ninth Circuit (over a dissent): Right you are. Injunction affirmed.
- The U.S. Supreme Court's 1994 decision in Heck v. Humphrey bars convicted criminals from bringing § 1983 suits when a victory would necessarily imply the invalidity of their convictions. But, explains the Eleventh Circuit, the two rulings must "logically contradict" one another. Thus, a lawsuit against a Miami police officer—who is alleged to have unlawfully shot the now-convicted driver of a stolen car before the driver attempted to elude police—may proceed.
- And in en banc news, the D.C. Circuit will revisit its decision dismissing the request by the House of Representatives for the court to enforce congressional subpoenas against former White House Counsel Don McGahn. So Don McGahn will head back to court, but not until February 23.
- And in more en banc news, the Ninth Circuit will not reconsider an earlier panel decision upholding a San Francisco ordinance that prohibits the owners of tenancy-in-common properties from converting into condominium properties unless the owners agree to offer any existing tenants lifetime leases. A whopping nine judges would have granted rehearing.
- And in further en banc news, the Tenth Circuit will reconsider its decision that local governments have standing to challenge Colorado's Taxpayer Bill of Rights, which requires any tax increases to be approved by the voters, as a violation of Colorado's enabling act by which Congress guaranteed "a republican form of government."
Last month, North Wilkesboro, N.C. officials barred a 33-year-old homeless shelter from moving into a larger new space. Though the proposed location is, as required, far from residences and in an area zoned business-industrial, officials denied the shelter a permit—in part because it has a public sidewalk out front and sits along a busy road. But the zoning code requires shelters to be near sidewalks and roads. Per the chair of the town's Board of Adjustment: "I think the issue here is that it meets the zoning requirements, but that doesn't mean it belongs here." This month, IJ and the shelter sued the town in federal court. Read all about it in the Winston-Salem Journal. The complaint can be found here.