The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Recording the police, union speech, and repulsive comments.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
This week, IJ launched the third edition of its landmark report on civil forfeiture, Policing for Profit. The report presents the largest ever collection of forfeiture data and updated grades for the civil forfeiture laws of each state, D.C. and the federal government, which together have forfeited at least $68.8 billion since 2000. It also includes a new analysis finding no increase in crime after New Mexico abolished civil forfeiture and the profit incentive in 2015. Click here to read more from ProPublica.
- State wiretapping laws often bar secret unconsented recordings, but Massachusetts goes a step further and prohibits such recordings even in public places. First Circuit: That violates the First Amendment as applied to recordings of police, as history shows such "newsgathering" plays a critical role in public debate and can be conducted without interfering in police work. But we can't consider broader challenges to recordings of other government officials or other individuals without a reasonable expectation of privacy, as those challenges are overly hypothetical and not yet ripe.
- Armed robber robs Pittsburgh store precisely when its safes are most likely to be full; he also knows about second safe that few others did. Yikes! There's no evidence that the man convicted of the crime in 2006 had inside knowledge of the store's operations, nor is he ever connected to the getaway car. Third Circuit: The fact that his fingerprint was on a manila envelope the robber left behind and the fact that he didn't match the robber's description (but also wasn't so far off that it necessarily excluded him) do not add up to proof of guilt beyond a reasonable doubt. Habeas granted.
- After seeing a drug dealer repeatedly enter and exit a woman's house, Parma, Ohio police search the home and find over $68k in cash. Sixth Circuit: Because she did not present any evidence to substantiate her claim that she owns the money, she lacks Article III standing to challenge its forfeiture.
- Eagle Towing—a Michigan towing company—finds itself brusquely removed from the towing lists of two Michigan State Police posts. But neither of the post commanders complied with the department's detailed, written processes for removing towing companies from the lists. A due process violation? District court: Potentially, and the company's property interest was clear enough to defeat qualified immunity. Sixth Circuit: Affirmed. Judge Sutton (dissenting): "Even assuming there is a protected property interest in staying on a towing call list, that interest is not clearly established." (No comment in the dissent on what some might deem the most controversial aspect of the majority opinion: its use of an all-caps "NO" for emphasis on page 7.)
- In March 2020, the Sixth Circuit held 2–1 that a lawsuit alleging sexual harassment in a University of Michigan executive MBA program could proceed to trial. But the dissent wins the day, as the en banc Sixth Circuit reverses, holding that the university appropriately escalated its response to the alleged harasser at each stage.
- Does forcing public union members to vote—when they'd rather not vote—on whether to keep their union certified violate their right to free speech? How about preventing them from bargaining about anything other than base wages? Is that a speech thing? Well, the Seventh Circuit told a Wisconsin union that it doesn't matter because either there's no standing or the court has already said this stuff before.
- In the Ninth Circuit's view, the Supreme Court's recent ruling in Roman Catholic Diocese of Brooklyn v. Cuomo "arguably represented a seismic shift in Free Exercise law." It also compels the result in this nearly identical case, in which churches successfully challenged Nevada's COVID-19 restrictions on in-person church attendance.
- Allegation: Woman sentenced to Stevens County, Wash. work crew for 81 days must listen daily to county employee's "repulsive comments regarding masturbation, sex, and other people's wives, daughters, and girlfriends," among much else. Which was "inappropriate and unacceptable," says the Ninth Circuit, but not cruel and unusual. Qualified immunity. And no suing the county either.
- Pretrial detainee sues Jefferson County, Colo. jail, alleging guards put him in proximity to another inmate despite an order not to and then didn't intervene quickly enough when that inmate attacked him, resulting in a five-day hospital stay. His complaint, filed without counsel, is dismissed as frivolous, and he misses the deadline to appeal. Man: I am homeless. I don't have an address or phone number. Tenth Circuit: The complaint was properly dismissed. But we think he can try to revive it.
- Allegation: Denver and Aurora, Colo. police arrest suspect outside his apartment. They don't have a warrant to search the apartment, and the suspect repeatedly denies permission to enter, but officers go in with guns drawn, finding suspect's sleeping infant. Tenth Circuit: We have caselaw saying you can sue officers who fail to intervene to stop other officers from using excessive force or making unlawful arrests. But this is an unlawful entry claim, and there are no (published) cases about failing to intervene in those. Qualified immunity.
- Abortion protestors sue City of Norman, Okla., challenging the city's disturbing-the-peace law. (Some of the protestors had previously been cited under the law for shouting, using loudspeakers, and the like.) District court: The protestors' request for a preliminary injunction is denied; their First Amendment challenge is unlikely to succeed. Tenth Circuit: Just so. The law targets the volume of speech, not the content.
- During Parkland, Fla. high school shooting, the police officer in charge of school security stood outside the building with his gun drawn and made no attempt to intervene. Police responding to the shooting likewise "staged" outside the school. Students sue, claiming this lackadaisical response violated due process. Eleventh Circuit: Police do not have a duty to protect schoolchildren from harm, as they are not in police custody. Students can state a due process claim only if they allege that police intended to cause them harm, and the students allege nothing like that here.
If not for the pandemic, Elizabeth Brokamp could provide talk therapy to D.C. residents in person in Virginia, where she is a licensed professional counselor. But now she is only seeing clients online, and she cannot talk to new D.C. clients at their D.C. homes without a D.C. license. As a result, when D.C. residents have contacted her asking for help, she has had to turn them away. Now Elizabeth has joined with IJ to challenge D.C.'s licensing restriction as a violation of the First Amendment. Talk therapy is speech; Elizabeth doesn't prescribe drugs or do anything other than talk. And under the First Amendment the government cannot prohibit unauthorized talking. Click here for more.
