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.
New on the Short Circuit podcast: IJ attorneys Kirby West and Jeff Redfern consider the pressing issues of the day, such as how many Ninth Circuit judges does it take to change an en banc denial and can butterflies flutter over The Wall?
- Almost forty years ago, a defendant was convicted of killing a man on Christmas eve on the streets of Philadelphia. Twenty years ago, somebody else confessed to the murder. Ten years ago, a key witness for the prosecution recanted her testimony. Six years ago, two more witnesses recanted. Third Circuit: We view recantations with suspicion, but the number of recantations here warrants an evidentiary hearing.
- Last month, North Carolina elections officials, apparently wary of the Post Office's ability to deliver absentee ballots in time, extended the deadline for receipt from three to nine days after election day (ballots still must be mailed by election day). Much litigation ensues. The Fourth Circuit takes the unusual step of taking the case en banc after the panel had voted but before the panel opinion had been drafted. And the en banc court will not put a stop to the ballot-receipt extension, over some dissenters who are displeased both with the substance of the decision and the process it took to get there.
- Former co-owner of Dinero Express is convicted of money laundering: running it through washing machines, when it arrives smelling like mischief, but also running it through a series of money transfers. Fifth Circuit: While petitioner was a success at money laundering—both literal and figurative—his habeas petition raises issues that could have been raised in an earlier petition and is an abuse of the writ. Concurrence: I agree, but I also think we should reconsider our habeas case law to further restrict the writ.
- Texas's absentee-ballot system involves a "Signature Verification Committee"—a "politically diverse" group that is tasked with approving or rejecting signatures on mail-in ballots. The committee verifies signatures on the ballot application and the absentee ballot envelope, and it may also look to signatures from that voter within the last six years that are on file with the county clerk or voter registrar. If a majority of the committee votes to reject a signature, the voter must be notified but has no opportunity to challenge the rejection. Considering that absentee ballots are "the largest source of potential voter fraud" and voting by mail is a privilege rather than a constitutional right, says the Fifth Circuit, this system is fine, at least fine enough to apply to this election.
- For their entire lives, two teenage brothers in Mathis, Tex., have each kept a lock of their hair uncut as a promesa (a practice among American Catholics of Hispanic descent, which involves petitioning God with a request and vowing to fulfill a promise in return). In 2017, their public school informs them that they cannot participate in extracurricular activities unless their adhere to the school's grooming standards, which prohibit their long hair. District court enters preliminary injunction, finding that the school is likely violating the family's rights under the Texas Religious Freedom Restoration Act. Fifth Circuit: And contrary to the school's protestations, Brother #1 did not have to comply with pre-suit notice requirements. But Brother #2 should have, meaning the preliminary injunction is vacated as to him.
- In 1998, Kentucky passed a law requiring abortion facilities to acquire a written agreement with a local hospital plus a written agreement with a local ambulance service to transport patients with abortion complications. Recently, state officials added a requirement that the hospitals be within a 20-minute drive. Sixth Circuit (over a dissent): There's no indication that both of the state's abortion facilities would close if the law is enforced, so it's not accurate to say that the regs impose an undue burden on the right to abortion. (Attn circuit-split watchers: The chief justice's concurrence in last term's June Medical Services continues to confound; the Sixth Circuit sides with the Eighth and splits from the Fifth as to the effect of the concurrence.)
- Allegation: Pretrial detainee smuggles cigarettes into jail, fails to bring enough for everyone, and suffers three beatings at the hands of envious inmates before Coffee County, Tenn. jail officials finally grant his request to transfer him to a safer cell block. Deliberate indifference? Jail officials: If he hadn't smuggled in those cigarettes, he wouldn't have gotten beaten up all those times. Sixth Circuit: No qualified immunity.
- Tennesseans who registered to vote online or by mail may not vote absentee in the first election after they registered. District Court: That ban violates first-time voters' constitutional rights, so it's enjoined. Sixth Circuit: And we won't stay that injunction. For one thing, we don't understand why the government waited nearly a month to appeal and seek a stay given that the election is so quickly approaching.
- Michigan has long prohibited people from hiring cars to take voters to the polls unless they're physically unable to walk. The law was first enacted in 1895 to prohibit the classic form of bribery known as vote hauling, which is "cast as a way to get voters to the polls, [but is] often little more than an efficient vote-buying operation." And, 125 years later, two-thirds of this Sixth Circuit panel will allow the gov't to enforce the law for this election.
- Out of a total of 60 potential jurors for trial over 2007 Champaign, Ill. triple shooting, just two are African-American. The prosecutor strikes one of them who is familiar with the scene of the crime. (Defendant is convicted and sentenced to 90 years.) State court: Which is a perfectly reasonable reason to strike a venireperson. Seventh Circuit: Just so. The lack of African-Americans in the jury pool was a minor anomaly and is neither here nor there Batson-wise.
- FBI agent is ordered to turn over his laptop, which contains surreptitious recordings of Arkansas state senator (who is ultimately sentenced to 18 years for taking bribes). Instead, the agent pays a computer shop to erase the hard drive and scrubs it again himself after. Then he lies to his superiors and the court. Nonetheless, the recordings are recovered elsewhere, and they're not particularly helpful to the defense. So was there something else on the laptop that would make the agent risk criminal charges, his career? Eighth Circuit: Whatever it was, it doesn't help the senator (or his conspirators). Conviction affirmed.
- After blowing a deadline by which it was required to promulgate rules for managing landfill emissions, the EPA is ordered to wrap things up by November 2019. Instead, EPA conducts a rulemaking extending their deadline until August 2021. District Court: Nope, you'll stick to the November 2019 date. Ninth Circuit: Nope, it's an abuse of discretion to refuse to modify an injunction when the underlying law has changed.
- "What if the State of Washington passed a law that gave the reigning political party access to certain State-controlled, speech-enabling information, but denied that information to everyone else? It is hard to imagine anyone believing such a law would be constitutional under the First Amendment. So should it matter if the State enacted the same law, but instead of giving the information to the incumbent political party, it gave it to an incumbent public-sector union that serves as the exclusive bargaining representative for certain employees paid with public funds? That is what happened here when Washington voters enacted I-1501." So writes Judge Bress, dissenting from a panel opinion of the Ninth Circuit upholding the initiative.
- If you walk towards someone you allegedly assaulted earlier in the day, with a knife drawn, and while defying specific police orders to stop, do you have a clearly established right to be free from the use of deadly force? Ninth Circuit: You do not. Qualified immunity.
- Federal law taxes revenue from selling illegal drugs, but doesn't allow deductions for business expenses. Yikes! And that rule applies even where marijuana is legal as a matter of state law. Tenth Circuit: Over the past several years, numerous dispensaries in Colorado have resisted complying with IRS subpoenas seeking information about their revenues and expenses. As usual, their arguments fail.
- Long-haul trucker and his trainee are accosted by a woman in a Homewood, Ala. parking lot. She accuses the trucker of hitting her car on the highway. Police arrive, and matters escalate quickly. Trucker's allegations: Per company policy, I tried to photograph the alleged damage to the woman's car, and the officer tased me in the back without warning, kicked me, and broke my jaw, then tased me again, then pepper-sprayed me, and then two more officers arrived and continued to kick, strike, and choke me. Eleventh Circuit: At the summary judgment stage, the district court erred by not crediting the man's account. To trial the case must go.
- Florida man alleges state law enforcement agency wrongly continues to disseminate his personal information on its website after he completed probation for sex crimes against minors. District court: The man waited too long to sue; his case is barred by the statute of limitations. Eleventh Circuit: Affirmed.
- And in en banc news, the Eleventh Circuit will reconsider its holding that the Prison Litigation Reform Act prevents prisoners from recovering punitive damages for a constitutional violation unless they have been physically injured.