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.
This week, IJ's own Rob Frommer told the South Carolina Supreme Court that the state's civil forfeiture law is unconstitutional: when property is seized (often without charging anyone with a crime), the law gives owners no way to get it back for months or years and forces them to prove their own innocence. It also gives law enforcement at least 95% of everything they seize and forfeit. According to The Post and Courier, the justices seemed to agree that's a big problem.
- U.S. journalist covering the Syrian civil war alongside rebel forces is nearly blown up by airstrikes on five different occasions. He believes the U.S. gov't has put him on an alleged secret "Kill List" and sues, seeking to be taken off. But, the D.C. Circuit—using a squadron-sized portion of judicial notice—says he lacks standing. While it's possible the U.S. government was targeting him and put him on a list, it's not plausible, as many different parties were shooting each other at the time, often indiscriminately.
- Does the owner of two cockfighting venues in Puerto Rico have standing to challenge a federal law that bans cockfighting in Puerto Rico? Feds: He does not. First Circuit: He does. However, Congress' ban stands.
- Who could have known that it violates both the Eighth Amendment and the substantive due process protections of the Fourteenth Amendment to keep someone in jail for more than a year past their state-mandated release date? Second Circuit: No reasonable prison official, that's who. Qualified immunity . . . this time.
- Pennsylvania-based nonprofit Safehouse wishes to set up a safe injection site in Philadelphia, where opioid users can shoot up under medical supervision. An innovative approach to harm reduction, says the Third Circuit, but also one that violates a federal law aimed at shutting down crack houses. Judge Roth, dissenting: No, it doesn't (though I agree that the nonprofit's constitutional arguments all fail).
- Deaf people have long used text-based machines to communicate via telephone, which modern technology is phasing out in favor of video. The Bureau of Prisons is wary of allowing video calls directly between participants, so the warden of a North Carolina prison provides only email and text-based machines. But these methods don't convey tone and require users to have some fluency in written English. Which is inadequate for a deaf civil detainee whose reading and writing skills are similar to a 7-year-old's, says the Fourth Circuit. The First Amendment protects his right to effectively communicate with others, and his current options don't allow him to exercise that right.
- The Refugee Act directs the federal government to "consult" with states and localities about the distribution of refugees to different localities around the country. An executive order issued by President Trump, by contrast, requires that both state and local governments consent to settlement of refugees within their jurisdiction. Fourth Circuit: The district court properly entered a preliminary injunction barring application of the executive order. By requiring "consultation," Congress chose not to require "approval" or "consent."
- An immigrant child witnessed gang members kill his friends in Honduras at the age of seven, was robbed and beaten when he fled to Mexico, and was detained by CBP upon entering the United States. Held in a juvenile detention center, he frequently acted out—leading to physical restraints and solitary confinement. Along with others in the same facility, he claims the facility provides inadequate mental health treatment for trauma. Fourth Circuit: A facility holding unaccompanied children must provide care that complies with accepted professional standards—a standard more demanding than the "deliberate indifference" standard usually applicable to prisoners. The trial court can apply that standard on remand. Dissent: The deliberate indifference standard ensures that judges do not micromanage detention facilities and should apply here.
- Applicants for visas available to victims of serious crimes who cooperated with law enforcement sue the feds, claiming that Homeland Security has unreasonably delayed: (1) adjudicating their petitions for work authorization while their visa applications are pending and (2) adjudicating the visa applications themselves. Fourth Circuit: We can't do anything about (1) because the feds aren't obligated to grant work authorization. But the district court needs to take another look at the visa delays.
- There is no dispute that a Corpus Christi, Tex. hotel pays the current food and beverage director (a woman) less than the past three people to hold the job (all men). Fifth Circuit: Equality of opportunity is fundamental to who we are, and to who we aspire to be, as a nation. The hotel may very well have a gender-neutral explanation for the disparity in pay, but, if it wants to prevail in this litigation, it will have to provide that explanation on remand.
- At different times during the pandemic, Louisiana "bars" have had to close, while "restaurants" (not quite clear which is which) have been able to somewhat open. This violates equal protection, argue the bars. And, although rational basis applies, it's not the "sub-rational basis" that a case last year implied is called for during a pandemic under Jacobson v. Massachusetts (1905). Fifth Circuit: Totally, "sub-rational basis" isn't a thing. But, rational basis itself ain't much, so you still lose. People yell a lot in bars, less in restaurants. Judge Willett, concurring: Jacobson is irrelevant to all this. Will y'all please stop talking about it? [N.B.: We will not stop talking about it.]
- When The Courier-Journal of Louisville, Ky. published a recipe for a boozy "Derby pie," did it violate the federally registered trademark for Derby Pie? Sixth Circuit: It did not; nobody could think the article was identifying the source of goods, rather than describing the flavor of the pie. (Bonus: the opinion includes a copy of the recipe!)
- Owner of two towing companies finds himself crosswise with both the Michigan State Police and the city of Taylor. Allegations: He gives sports tickets to 18 state troopers, who are then reprimanded after he gives their names to internal affairs investigators. They then stop using his companies for tows. At the same time, the Taylor City Council voted to renew the man's towing contract with the city, but the mayor vetoes the contract because the man refused to contribute to the mayor's political campaign. Sixth Circuit: Retaliation for protected speech—whether talking with investigators or declining to contribute to a political campaign—doesn't enjoy the protection of qualified immunity. And the mayor doesn't get absolute immunity, either.
- Illinois residents, who are suing a corporation that scrapes photos from social media to create an enormous database of biometric facial scans, argue that they don't have standing to proceed in federal court. Defendant corporation counters that plaintiffs do have standing. Que what, huh? Turns out plaintiffs, who filed their class-action complaint in state court where requirements to proceed with such suits are more lax, don't want to be in federal court. Seventh Circuit: Bold strategy, Cotton. Back to the Circuit Court of Cook County you go.
- Distressed at the shooting of a fellow officer, Las Vegas SWAT sniper takes to Facebook to lament that the now-captured shooter "didn't have a few holes in him." Las Vegas Metro PD removes him from the SWAT team and reduces his pay. A First Amendment violation? Ninth Circuit: Might be; there are disputed issues of fact about whether he was using hyperbole or actually calling for unlawful use of force. Dissent: The LVPD's belief that the officer was advocating the unlawful use of force need only have been reasonable, and it surely was.
- Illegal immigrant brought to the United States in 2000, when he was three years old, is arrested by ICE and released on bond while his immigration proceedings move forward. While out on bond, he appears at a rally and reads an original poem, "Dear America," in which he criticizes ICE. Within 36 hours, his bond is revoked and he is rearrested. Unconstitutional retaliation for protected speech? Ninth Circuit: Very well could be; the Supreme Court's recent rulings on retaliation in the criminal context do not control, and the case is remanded.
- If you create a big inhospitable barrier blocking your front door, is that an invitation for folks to walk around to the back door? Or is it the exact opposite of an invitation? The Tenth Circuit splits on this question of rural etiquette (and the Fourth Amendment).
- Street preacher in Hobbs, N.M. is approached by woman who taunts him and pushes his Bible into his face. He pushes the woman to the ground and is later arrested. (After the state dithers for 14 months, the charges against him are dismissed on speedy-trial grounds.) But wait! He had recorded the entire incident on his phone, which confirms his side of the story, and he told the arresting officer about it. Did the officer violate his rights by not reviewing the tape? Tenth Circuit: We've said cops should review easily available tapes in previous decisions, but that was dicta. Qualified immunity.
- And in en banc news, the Third Circuit will reconsider its recent holding that, although the First Amendment protects the public's right to access off-the-record bail hearings, that right does not extend to recording or transcribing those hearings.
Attention 1Ls and 2Ls: Come work with us this summer! Fellows get an unparalleled opportunity to impact IJ's cutting-edge constitutional litigation. Not only is the summer extremely substantive in terms of work product, but students also participate in intensive legal and communications trainings, attend seminars, integrate fully into IJ's office and culture, and get $7,000 to boot. Learn more about the program here, and apply now.