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.
IJ is going to The Show! Next Monday IJ Attorney Patrick Jaicomo will argue before the U.S. Supreme Court in Brownback v. King, a case in which the government is seeking to create a huge new loophole through which government employees can escape accountability when they violate someone's constitutional rights. Learn more about the case here and check out the argument live on the Supreme Court's website.
- Per footnote one of this D.C. Circuit opinion, Senior Judge Silberman is having none of your acronym nonsense
- First Circuit: No qualified immunity for police who enhanced Lord's danger, leading to attack on Irish.
- Corrections officers: We didn't "conspire" to beat the crap out of that inmate; we just spontaneously decided to do it (and cover it up). Second Circuit: No dice.
- After admitting check fraud to postal inspectors, Brazilian suspect in New York flees to Brazil and evades capture for 11 years. Chutzpah alert: Upon his arrest, he alleges that the 11-year delay between indictment and prosecution violates the Sixth Amendment right to a speedy trial. Second Circuit: How did you think that was going to turn out?
- Fourth Circuit (dissent): "Does the Constitution permit warrantless dragnet surveillance by a police plane in the sky above an American city? Until now, this question was merely a provocative hypothetical for law professors or a slippery-slope concern for litigants. But with the Aerial Investigative Research ("AIR") program, Persistent Surveillance Systems ("PSS") and the Baltimore Police Department ("BPD") bring the thought-exercise to life. Because the majority concludes the warrantless surveillance program is constitutional, I respectfully dissent."
- In 1994, a group of men in Arlington, Tex. kidnap a 16-year-old high school student, transport her to Arkansas, repeatedly rape her, and murder her. One of the men is convicted of (among other crimes) kidnapping resulting in death (for which he is sentenced to death) and carrying a firearm during a crime of violence (for which he is sentenced to 60 months' imprisonment). Man seeks leave to file successive habeas petition, challenging, not the kidnapping conviction, but the firearm conviction. Fifth Circuit (over dissent): Denied. The firearm conviction stands. (The man is scheduled to be executed for the kidnapping count on November 19 and sought to argue that the invalidity of his conviction on the firearm count meant that he should be resentenced on the kidnapping count.)
- Texas executive order exempts from its mask mandate those persons who are "voting, assisting a voter, serving as a poll watcher, or actively administering an election." Fifth Circuit (Oct. 14, 2020): The case is remanded to the district court to decide whether the exemption violates the Voting Rights Act and whether enjoining it is appropriate. District court (Oct. 27, 2020): The exemption likely violates the Act and enjoining it would not be a drastic change to election rules, so it is preliminarily enjoined. Fifth Circuit (Oct. 30, 2020): It's too close to Election Day to change election rules, and altering the rule on masks would cause voter confusion. The district court's preliminary injunction is stayed.
- After completing his prison term in late 2015, man was supposed to complete three years of supervised release. Instead, he vanishes. He's arrested for public intoxication and failure to identify himself in late 2019, well after his three-year supervised release term was to have expired. The district court sentences him to 12 months' imprisonment for violations of his supervised release. Man: The district court lacked jurisdiction over violations that took place after the three-year term expired. Fifth Circuit: That argument might fly in the First Circuit, but it doesn't fly here (or in the Second, Third, Fourth, and Ninth Circuits). The term of supervised release was tolled while the man was a fugitive.
- Rectum? Damn near killed 'em! Or, at the very least, went a little bit overboard trying to retrieve three golf-ball-sized bags of heroin and fentanyl from an Ohio suspect's interior. Nevertheless, the Sixth Circuit holds the search was reasonable.
- Your editors will never cease to be astonished at the things people will volunteer to federal investigators, as in this decision of the Sixth Circuit, upholding the conviction of a man who caught the attention of the FBI after telling them that he "would be the perfect recruit for ISIS."
- Your editors will also never cease to be astonished at the things police officers can do and still retain their jobs, as in this decision of the Seventh Circuit, regarding a Chicago police communications operator who was reinstated after shooting someone during a road-rage incident that could have ended with the other driver simply leaving the scene. But, per the court, her supervisors have qualified immunity for her temporary termination.
- Despite having received a handicapped parking placard for a "permanent" knee condition, 55-year-old Illinois corrections officer applies for and is accepted to the Cook County Sheriff's Police Academy. When questioned about the placard, he prevaricates, leading to his dismissal from the Academy. An ADA violation? Seventh Circuit: You were dismissed for lying, not for bad knees.
- Nevada law gives homeowners' associations a superpriority lien on properties within the association for certain unpaid assessments. If the HOA forecloses on the property, it can extinguish other liens, including a first deed of trust held by a mortgage lender. An uncompensated taking? Ninth Circuit: Despite the argument's intuitive appeal, there's no state action and, thus, no taking.
- In "cold comfort" news, this Tenth Circuit opinion awarding sanctions against an attorney goes out of its way to make clear that it does not think the appeal before it was frivolous, just that it was argued frivolously.
- Do "complex questions of petroleum migration and benzene exposure" require expert testimony? Your editors might say yes based on the fact that they don't know what those words mean, but this Tenth Circuit panel says yes for probably better reasons.
- And in en banc news, the Fifth Circuit will revisit its holding that a welder who never goes to sea nonetheless qualifies as a "seaman" under the Jones Act, presumably because its initial opinion failed to make any funny allusions to H.M.S. Pinafore.
- And in further en banc news, the Fifth Circuit will revisit its holding that district courts cannot entertain lawsuits filed by defendants in ongoing SEC enforcement actions who question the legitimacy of the administrative law judges hearing their case.
- And in still further en banc news, the Fifth Circuit will revisit a challenge to a Texas law requiring "fetal demise" before an abortion can be performed.
Friends, IJ has been beating the drum to raise awareness of the dangers and corruption surrounding civil forfeiture for years now. So we were not at all surprised when, on November 2, 2020, a federal court sentenced the former police chief of Manning, South Carolina, to a year and a day in prison for stealing nearly $80,000 in cash seized by his office during a traffic stop. But Palmetto Staters may see an end to "policing for profit" after IJ argues an upcoming case before the South Carolina Supreme Court. Learn more here.