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.
The fact pattern may sound familiar by now: DEA seized a large amount of cash ($43,167, to be exact) from a woman at an airport without any allegation of wrongdoing—much less actual evidence of misconduct. The money was entirely legitimate, and the woman explained she was bringing it along for a trip to a casino. Unmoved, DEA held the cash for half a year, only to return it last week without apology or explanation. Now IJ is pressing on with class action claims challenging DEA's unconstitutional and unlawful airport cash seizure practices.
- Last summer, the Department of Justice announced it would resume federal executions with a single-drug protocol. D.C. Circuit (April): the feds' execution protocol doesn't have to go through notice-and-comment requirements, nor does it need to conform to certain state requirements. The case is then sent back down to resolve other claims, and the feds execute seven of the condemned. D.C. Circuit (November, with several opinions and partial dissents): the feds' unprescribed use of the drug violates federal law, and the execution protocol might well violate the Eighth Amendment. Supreme Court: Injunction vacated. (Followed by another execution late Thursday night.)
- Crime-committing children cannot constitutionally receive mandatory life-without-parole sentences. What about 20-year-olds who receive discretionary life-without-parole sentences? That's fine, says the First Circuit, for a gang member who catfished and murdered multiple teens. Bonus Judge Selya vocab quiz: impuissant, golconda, adumbrated, limns.
- Former all-star New York Knick Charles Oakley attended a Knicks game at Madison Square Garden on a night that went south. He says the Knicks' owner directed security to remove him without reason, and security then shoved him to the ground without reason. Second Circuit: Might well be assault and battery. His claims shouldn't have been dismissed.
- Allegation: Suffolk County, N.Y. corrections officer sexually harassed and assaulted female inmates pervasively during his 25-year tenure. But can the municipality be held liable for his bad acts? Second Circuit: You guys have been doing internal-affairs investigations of this guy since the 90s; if the allegations are true, you're on the hook.
- Can you make a federal case out of automotive air fresheners? It depends, the Second Circuit explains: If you call your air freshener "Black Ice," and your competitor calls theirs "Midnight Black Ice Storm," that's a trademark claim that deserves to go to the jury. But not so much if you call your freshener "Bayside Breeze" and your competitor calls theirs "Boardwalk Breeze."
- Is it RICO? No, the Third Circuit explains, in this case involving an allegedly traumatic trip to the dentist. It definitely isn't RICO.
- Practice tip: When a court posts a sign prohibiting "electronic devices," and the courtroom bailiff tells you to turn off your phone, you generally shouldn't disrupt court proceedings by arguing with the bailiff. Even if you think the rule doesn't apply to you as a lawyer. And, the Fourth Circuit holds, the same is true if the court is an agency and the judge is an immigration judge.
- Four years ago, a West Virginia company sought an exemption from EPA's clean-fuel regulations. EPA denied the exemption, but, in 2018, the Fourth Circuit found a bevy of errors and sent the case back to EPA—which denied the exemption again on remand. Now, in 2020, the Fourth Circuit finds the EPA still can't get this one right. Try again, EPA. (But, note, no exemption for the company in the meantime.)
- Murphy Brown (the hog producer, not the fictional character) appeals a jury verdict awarding millions in damages to neighbors of its industrial-scale hog feeding farm. Fourth Circuit: The verdict finding a nuisance stands. And while the state has recently limited compensatory damages in nuisance cases, that law is forward-looking only; in fact, a contrary ruling would raise serious constitutional concerns, as it would interfere with the neighbors' vested property rights. On the other hand, we aren't so sure about the amount of punitive damages awarded, and we remand for reconsideration there. Wilkinson, J., concurring: "The warp in the human-hog relationship, and the root of the nuisance in this suit, lay in the deplorable conditions of confinement prevailing" at the farm—"conditions that there is no reason to suppose were unique to that facility."
- San Antonio, Tex. police officers stop and frisk a man standing with others in a high-crime area. They find a gun (possession of which is a crime for persons who, like the man, have felony convictions). Man: The officers violated the Fourth Amendment because they lacked reasonable suspicion. District court: No problem here; there had been frequent shootings in the area, the man was wearing red shorts, and red is the color of choice for members of the Bloods gang. Also, the man didn't voluntarily consent to a search, which is kind of suspicious, no? Fifth Circuit: No. The government didn't carry its burden of showing reasonable suspicion. But the district court is free to give the government another try on remand.
- Fifth Circuit: Evidence that a guard smiled at an inmate's penis during a prison search does not rise to the level of a "humiliating and degrading" search actionable under the Fourth Amendment.
- After a birthday party at a Saginaw, Mich. restaurant devolves into an "O.K. Corral-esque shootout," city officials shut off the water to the building to ensure there are no more parties. Did the city violate due process by not giving the restaurant owner pre-deprivation process? Sixth Circuit: Indeed they did. No qualified immunity. Dissent: This is the second time a party at this restaurant has ended in gunfire; there's no case "clearly establishing" that the city could not shut off the water to prevent a third shootout.
- What happens when you get a pension payment that's "two sizes too big"? Sixth Circuit: Alas, you have to give it back. We sympathize that you already paid taxes on the windfall, and, while we are not tax advisors, we note you may be able to file an amended return or seek a tax credit in future years.
- Would-be jihadist in Chicago parks bomb-laden car outside restaurant and presses the detonator. Nothing happens. Turns out the man's co-conspirators were FBI agents, and the man is arrested. While awaiting trial, he solicits the murder of the agent who gave him the fake bomb. His cellmate turns him in. Then, he tries to stab another inmate to death for drawing a picture of the Prophet Muhammad. District court: Sixteen years' imprisonment is an appropriate sentence for all these crimes. Seventh Circuit: District courts get a lot of discretion when it comes to sentencing, but the court abused that discretion here. Sixteen years is way too low. Remanded for resentencing.
- Defendant in a federal fraud case decides to go pro se, and, in his own words, winds up "like a bug under a hard-stomping prosecution boot heel." Seventh Circuit: While the district court could have done more to warn the defendant of the risks of going pro se, we can't find reversable error here given that defendant went pro se (and lost – badly) in another federal fraud case not so long before. Both savvy and foolish defendants have a right to self-representation.
- 280 months' imprisonment for distributing methamphetamine? Copacetic, the Eighth Circuit explains, and in fact it could be much higher.
- Couple fails to appear at hearing before immigration judge, and they are ordered deported in absentia. They file a motion to reopen the proceedings (well, technically their second such motion). Allegation: We acted on the advice of our non-lawyer notario, who told us not to go to the hearing. Board of Immigration Appeals: To succeed on that kind of ineffective-assistance-of-counsel defense, you must show that you were prejudiced by the notario's screw-up. Ninth Circuit: Long-standing circuit precedent says no showing of prejudice is required here. Judge VanDyke, dubitante: Circuit precedent does indeed say that, but it makes little sense. And more broadly, "[o]ur circuit's immigration jurisprudence is a hot mess."
- Following a state court jury verdict in favor of a mother—who had alleged that county social workers violated her rights when they took away her children—the children filed a federal action claiming the social workers also violated their constitutional right to familial association. Then the federal jury found in favor of the social workers. Ninth Circuit: A parent's right to associate with her children can overlap with the child's right to associate with her parent, and a verdict in favor of a parent might sometimes be binding in a later case brought by a child. But that isn't the case here, as the mother claimed a number of rights-violations in the state court action, and we cannot know the precise basis for the jury's verdict. Concurrence: "Overlap" may be an understatement, but I agree with the bottom line.
- Two Florida local governments enact regulations that ban so-called "conversion therapy," meaning counseling or therapy with a goal of changing a minor's gender identity or sexual orientation, but that allow therapy to individuals undergoing gender transition. Eleventh Circuit: We recognize that conversion therapy is highly controversial, but the First Amendment has no carveout for controversial speech. This is a content-based (even a viewpoint-based) regulation on speech subject to strict scrutiny. And the fact that various medical associations oppose conversion therapy is not sufficient to satisfy strict scrutiny; professional associations cannot be allowed to set the bounds of the First Amendment. Dissent: Regulations that survive strict scrutiny are rare, but, given the weight of medical opinion, this is one of them.
- Tenured professor maintains a blog where he shares his belief that the Sandy Hook massacre did not, in fact, occur but was instead a hoax perpetrated by the U.S. government. Pursuant to the faculty's collective bargaining agreement, the university requests he add a disclaimer to the blog and disclose his activities to the school. He adds the disclaimer but refuses to report on his activities; the school fires him. Does this situation present First Amendment problems? The Eleventh Circuit says no.
- When a group of Thai Buddhists sought zoning approval to operate a meditation center in a residential neighborhood in Mobile, Ala., local residents weighed in with observations like "This is not a church, this is a Buddhist temple, and we don't need that" and "We don't need [Buddhism]—this is not a Buddhist neighborhood." Eleventh Circuit: RLUIPA, the relevant federal law, applies to "substantial" burdens on religious exercise, so we're remanding for the district court to determine substantiality. The relevant state-law analogue, however, has no substantiality requirement, which means that "any burden—even an incidental or insubstantial one—suffices to trigger strict scrutiny."
- Finding "no sense in beating around the bush," the Eleventh Circuit explains that this "appeal involves a poorly written federal regulation." And, really, what else is new?
- And in en banc news, the Sixth Circuit will not rehear an earlier decision rejecting a habeas petition filed by an undocumented person held for years without a bond hearing. Judge Thapar concurred in the denial of en banc rehearing, writing that, while aliens who live in the U.S. have due process rights, aliens who are stopped at the border do not. And Judge Moore dissented, writing that (notwithstanding "the musings of one judge concurring in the denial of a petition for rehearing") all persons within the sovereign territory of the U.S. enjoy due process rights.
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