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.
In 2015, CBP agents seized Gerardo Serrano's truck as he tried to cross the border into Mexico. Gerardo asked for a hearing before a judge, and then he waited. And waited. And waited. Two years later, he filed a class action on behalf of all U.S. citizens whose vehicles are seized at the border, claiming that CBP's failure to provide for a prompt post-seizure hearing violates due process. The Second Circuit has previously required prompt post-seizure hearings, in an opinion by then-Judge Sotomayor, but the Fifth Circuit disagreed and ruled against Gerardo. Now, in a petition filed this week, IJ is asking the Supreme Court to resolve the split. Click here to learn more.
- Federal law prohibits all felons—including one who made "a materially false statement on her tax returns"— from possessing guns. A Second Amendment problem? Third Circuit: No, because the Second Amendment only protects "virtuous citizens." Dissent: Not so. The Second Amendment protects all but "dangerous" citizens. See, among other things, then-Judge Barrett's dissent in a recent case from Seventh Circuit.
- In which the Third Circuit issues an unpublished decision affirming that the district court did not abuse its discretion in denying a motion for leave to amend under Federal Rule of Civil Procedure 15.
- District court: The conviction of a former Penn State president in state court (for his role in the decision not to report suspected child sex abuse) violated the Ex Post Facto and Due Process Clauses because—although the relevant conduct took place in 2001—the jury was instructed under statutory language that was enacted in 2007. Third Circuit: The Ex Post Facto Clause applies to retroactive legislation, but here the problem (if there is one) is with how the relevant legislation was applied by the courts. And the court decision wasn't so indefensible that it violated due process. The conviction is reinstated.
- Augusta County, Va. sheriff's deputy spies a familiar face at a local eatery—a man he had previously arrested on drug charges—and asks him to step outside. Once there, he asks the man to empty his pockets and, finding nothing, pats him down, also finding nothing. Then a drug dog alerts on the man's car, leading to a search that finds nothing. A Fourth Amendment violation? Fourth Circuit: Anyone who was asked to follow a police officer who had previously arrested them would feel perfectly free to walk away from the encounter.
- How much does the past matter? The Fourth Circuit considers the question and concludes that—at least in the context of a constitutional challenge to a state voter ID requirement—it doesn't matter nearly as much as the district court thought it did. Although North Carolina's 2018 voter ID law was enacted by many of the same legislators who passed an earlier 2013 voter ID law that was struck down as a product of racially discriminatory intent, the district court still had to start with a presumption of constitutionality.
- In July 1976, a Maryland couple planted a red maple in their yard. Forty-four years later, the Fourth Circuit explains that the "Japanese red maple tree features deeply lobed leaves that are red or reddish-purple in the spring and fall" and "is smaller than most other species of maple tree." This particular tree is the "centerpiece" of the family's yard. And more to the point, the tree does not interfere with the operation of a natural gas pipeline and doesn't need to be cut down.
- Texas makes it illegal for veterinarians to offer telemedicine services for any animal they haven't physically examined. (Telemedicine for humans you haven't examined is fine, even if they are noncommunicative, such as babies.) Fifth Circuit (2015): Obviously no constitutional problems here. Fifth Circuit (2020): Okay, so the Supreme Court said we were wrong about the First Amendment claim, so that one goes back down to the district court. Concurrence/Dissent: The Equal Protection claim should go back down, too. (This is an IJ case.)
- In response to the increase in COVID-19 cases, Kentucky's governor issues an executive order closing all public and private schools. Religious schools sue and secure a preliminary injunction. Sixth Circuit: Which was erroneous. The order treats religious and nonreligious schools identically, so the plaintiffs are unlikely to succeed on the merits.
- Though gun collector has spent a decade negotiating for the return of 400-plus guns seized by the LAPD and is still actively trying to recover them, an officer goes to court behind the collector's back and, with the court's permission, has 300-plus guns (valued at hundreds of thousands of dollars) destroyed. Ninth Circuit: Permanently destroying someone's property without providing any notice violates due process, and that is so obvious that the responsible officer doesn't get qualified immunity. The collector can sue the officer, the LAPD, and the city too.
- Does expecting to take non-cash, temporary government benefits after immigrating make one a "public charge?" Ninth Circuit: That wasn't the understanding of either "Victorian Workhouses" or Congress. So we affirm the district courts, but cut back on the nationwide injunctions because a bunch of other courts are doing the same stuff. Dissent: Yeah, about those other courts, one of which has "Supreme" in the title . . . .
- Woman slaps fellow passenger on flight from Minneapolis to Los Angeles, is convicted of assault in California. Ninth Circuit (panel): Wrong venue. She can only be prosecuted in the district over which the assault occurred. Ninth Circuit (en banc, over a dissent): Nonsense. Not only would that make it practically difficult to prosecute, the Framers couldn't possibly have intended the Venue and Vicinage Clauses to include the airspace over a state or district (had they foreseen metal tubes carrying people while hurtling through the sky at 600 miles per hour). Venue is proper where the plane lands [edited to add:] and any state it traveled through; conviction affirmed.
- A woman assists Seaside, Ore. law enforcement in their investigation of a brutal child rapist. As a result, immigration officials grant her a U-visa, a type of visa available for certain crime victims. She seeks to use her visa to obtain a derivative visa for her husband, whom she married while her application was pending. Yikes! A regulation says they needed to be married when she applied for her visa. Ninth Circuit (en banc): Statutory interpretation dictates that the regulation goes too far. Give her husband a visa. Dissent: The statute is ambiguous, and unreasonably restricting the agency's ability to interpret it invites mischief.
- ATF has a list of the origins of over 6.8 million firearms linked to criminal activity. Sounds juicy! A group files a FOIA request seeking to find out how many of those guns were owned by law enforcement (not the identities of those officers). ATF: No way; searching the database would create a new record, and we aren't required to do that. Ninth Circuit: If running a search across existing databases creates a new record, much gov't info will become forever inaccessible under FOIA, "render[ing] FOIA a nullity in the digital age."
- Drunk man shows up to his ex-wife's house. When Tahlequah, Okla. cops arrive, he picks up a hammer, and appears to pull it back behind his head. The cops shoot and kill him. Excessive force? Tenth Circuit: A reasonable jury could find that the cops recklessly created a dangerous situation by backing the deceased into a garage, and a reasonable officer would've known from prior precedent that this conduct was unconstitutional. Reversed and remanded.
- Georgia death-row inmate files lawsuit alleging that his planned execution by lethal injection violates the Eighth Amendment because his veins are in such bad shape that an IV is too risky. Requests execution by firing squad instead. Eleventh Circuit (over a dissent): Since firing squad isn't permitted by Georgia law, this is really a challenge to his death-penalty conviction, so he should have filed a habeas petition. And, because he's ineligible for a habeas petition, we dismiss.
- And in en banc news, the Fourth Circuit will reconsider its decision that the Trump Administration's new understanding of "public charge" (see Ninth Circuit, above) is a permissible interpretation of the Immigration and Nationality Act.
- And in more en banc news, the Fifth Circuit will not reconsider its decision that an ordained Southern Baptist minister may sue the governing body of his church over his dismissal. Eight of 17 judges dissent from denial.
- And in further en banc news, the Sixth Circuit will reconsider its decision that a Kentucky prosecutor's striking four African-American veniremen did not violate Batson v. Kentucky (or, more precisely (since, of course, this is a habeas case (the complexity of which is best captured by multiple layers of nested parentheticals)) that the Kentucky Supreme Court's holding to that effect was not an unreasonable application of clearly established Supreme Court precedent).
- And in additional en banc news, the Eleventh Circuit will reconsider its decision holding that a Georgia deputy's prolonged questioning during a traffic stop was an excusable Fourth Amendment violation. (The now-vacated panel decision itself had vacated an earlier panel decision to more fully explain why the panel majority saw fit to rule for the gov't based on a theory the gov't had neglected to raise at any point on appeal.)
- And in subsequent en banc news, the Eleventh Circuit will not reconsider its decision that the Florida Department of Corrections did not violate the Eighth Amendment when it refused to allow a transgender inmate to socially transition by wearing female undergarments, makeup, and long hair, triggering some "spicy rhetoric" from the dissenting judges.
When Joe and Annalyse Victor bought a home in rural Eagle, Wisconsin, they purposefully selected a 10-acre property where Joe, a commercial driver, would be able to park his trucks outside (just as the previous owner had done). But town officials decided to start enforcing code violations more strictly, and, though Joe moved his trucks inside, the Victors found themselves facing $88k in fines, which had been racking up daily without any notice from the town. Indeed, town officials routinely impose outrageous fines for insignificant offenses, often targeting residents who criticize the town board. To make matters worse, the entire system is tainted by a profit motive for the private law firm contracted to handle code enforcement. This week, the Victors' joined with IJ to put a stop to the town's abusive fines and fees enforcement. Click here to read more.