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.
Friends, if the Supreme Court reforms qualified immunity anytime soon, the history books will say the Court first showed its hand this month in Tanzin v. Tanzir. So say IJ attorneys Anya Bidwell and Patrick Jaicomo in USA Today.
New on the Short Circuit podcast: We ask the Supreme Court to bring the Privileges or Immunities Clause back to life.
- First Circuit: In which Judge Selya would like to remind everyone (1) that denials of temporary restraining orders generally are not appealable, and (2) that Shakespeare's original phrase was "paint the lily," not "gild the lily." (Bonus Selya Vocab: Devoir (noun): duty or responsibility.)
- The ATF maintains a firearm-tracing database to assist federal, state, local, and even foreign law enforcement agencies in investigating the sale and possession of certain firearms. And that database is exempt from FOIA, says the Second Circuit. So a nonprofit seeking information about firearms used in suicides is out of luck.
- Scammer/Spammer is convicted under the CAN-SPAM act for using spam email to pump up the price of penny stocks, which he then sold for a profit. On top of that, he's also subject to deportation if he caused more than $10k in victim losses. Spammer: There's no evidence I caused anyone financial loss. DHS: Well he must have, because the trial judge gave him a sentence that reflected at least $40k in victim losses. Third Circuit: Ah, but sentencing decisions are decided based on the preponderance of the evidence; removal requires clear and convincing. So the case goes back down for another look.
- Following news reports of lavish spending by justices of the West Virginia Supreme Court of Appeals, the court's (now-former) chief justice is charged with mail fraud, wire fraud, and related crimes. Following his conviction, his lawyers discover that one of the jurors had previously "liked" or retweeted four tweets relating to the scandal. Former chief justice: I'm entitled to an evidentiary hearing on whether the juror was biased against me. Fourth Circuit: Not so. Partial dissent: I agree that the former chief justice failed to make out a claim of bias. But he should have been allowed to explore the extent of the juror's Twitter activity during the trial, since she follows the accounts of two reporters who used the platform to report on the proceedings throughout.
- Allegations: After Wood County, Tex. deputy accused a fellow deputy of falsifying a personnel report, the sheriff promptly fired the accuser, designated her discharge "dishonorable," and denied her a name-clearing hearing. District court: Denying her a name-clearing hearing was a clear due-process violation. No qualified immunity. Fifth Circuit: We should frame the constitutional question with more "granularity," and so framed, qualified immunity applies.
- Fifth Circuit: Oil-rig worker who earns more than $200k per year is still entitled to overtime under the plain text of federal law. Meanwhile, Judge Ho and Judge Weiner trade barbs, with all due respect.
- Seventh Circuit: In which Judge Easterbrook refers to a female friend-of-the-court as an "amicus," splitting with Justice Sotomayor, The Green Bag, and Professor Leandra Lederman, who prefer "amica." Also, a prisoner suit that's removed to federal court and then dismissed doesn't count as a strike under 28 U.S.C. § 1915(g).
- Allegation: Arkansas state trooper observes speeding SUV, estimates it's going about double the speed limit of 55. Nearly two minutes later, the trooper starts to give chase, though the SUV is out of sight, reaching speeds exceeding 110 miles per hour along a dark, winding, hilly road. The trooper, who doesn't have his emergency lights or siren on and didn't alert dispatchers to the SUV, crashes into a car turning left in front of him, killing two. Eighth Circuit: Qualified immunity. Judge Grasz, concurring: This may seem unjust, but precedent requires it. Judge Colloton, concurring: This may seem unjust, but Arkansas legislators can create a state-court remedy.
- African American PhD student is suspended for two years after making persistent, unwanted appeals to a female undergraduate—including attending dance classes that she taught at the University Rec Center, sending flirtatious Facebook messages, and giving her a three-page letter expressing his romantic feelings. Eighth Circuit: The student claims that he was subjected to a harsher penalty than similarly situated white students, but none of those students were graduate students accused by undergraduates.
- A lot of people think police officers always win under qualified immunity, but that's simply not true: Sometimes, as in this Eighth Circuit case, a police officer is the plaintiff.
- The Ninth Circuit decides the copyright case of Oh, the Places You'll Boldly Go! in favor of Dr. Seuss: "The creators thought their Star Trek primer would be 'pretty well protected by parody,' but acknowledged that 'people in black robes' may disagree. Indeed, we do."
- Colorado state trooper, arriving at the site of a crash, finds a "largely incoherent, disoriented" driver. Alcohol? Drugs? No, in fact, these "indicia of impairment" are also "indicia" of a severe medical condition. Tenth Circuit: The trooper—who arrested the man for driving under the influence—is not entitled to qualified immunity. The trooper might have thought the man was drunk, but even drunk people need medical attention if they're exhibiting those kinds of symptoms.
- Does the slash in "surfactant/solubilizer" signify (1) "'and' or 'or'" or (2) just "and"? District court: The former. Federal Circuit: Indeed/Affirmed.
- If someone participates in a crime, they have historically been culpable for both that crime and any other crime that is the natural and probable consequence of the original crime—even if they did not intend for the additional crime to happen. California Supreme Court (2014): That cannot be used for first-degree murder. California Supreme Court (2020): Nor second-degree murder, on account of a new law prohibiting courts from imputing malice aforethought, an element of murder, to someone based solely on their participation in a crime.
- Philadelphia police stop driver, smell pot, and search the car, including a lockbox in the back seat that contains heroin. Which, per the automobile exception to the Fourth Amendment's warrant requirement, is fair play under the U.S. Constitution. But what about Pennsylvania's Constitution? Commonwealth's lawyers: This was already decided in 2014, and that case shouldn't be overruled because all that's changed since then is a few new justices. Pennsylvania Supreme Court: That argument is "myopic and cynical," and the 2014 case is overruled. "[W]e cannot reflexively cede our citizens' constitutional rights to privacy to the needs of law enforcement."
- How bad is it if you miss your probation curfew by 26 minutes? Well, pretty bad if you don't like spending 201 months behind bars, according to Florida's Second District Court of Appeal. And don't think that unexpected traffic in downtown Orlando will get you any sympathy. When you leave the house at 8:30 p.m., expect to be home by 9:50 p.m., and don't call your probation officer for permission to get home at 10:26 p.m., you'll get a sentence "at the bottom of the guidelines."
- And in en banc news, the First Circuit will reconsider its decision holding that the ATF did not need a warrant when it installed a camera on a utility pole to conduct 24/7 surveillance of a woman's home. Judge Barron had previously urged the court to take the case en banc, writing that it raises the question of whether it is "possible for people to go about their lives in ways that reflect that our society is in practice—and not just in name—a free one."
- And in more en banc news, the Fourth Circuit will reconsider its ruling that Baltimore police's aerial surveillance program, in which a plane records up to 90 percent of the city for 12 hours each day from the sky, is likely constitutional. We discussed the original panel holding on the podcast.
Four years after filing suit, this week IJ obtained final victory in Charlestown, Indiana, where officials—determined to bulldoze a low-income neighborhood and replace it with an upscale development—abused the city's code enforcement powers, showering property owners with extraordinary fines and fees (that accumulated daily and ran into the millions of dollars within weeks) for trivial violations like chipped paint, torn screens, and downed limbs. For hundreds of properties, fines were only waived if owners sold to the city's handpicked developer for $10,000. The settlement agreement, reached after the mayor's ouster and the city's repeated losses in court, requires the city to give property owners a chance to rectify any code issues before fines are assessed, to conduct code enforcement equally across the city, and not to penalize landlords or renters who demand a warrant before the city inspects their homes. Click here to read more.