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 2020, the Institute for Justice won a landmark Supreme Court victory in Espinoza v. Montana Department of Revenue, in which the High Court held that states cannot bar families participating in generally available student-aid programs from selecting religiously affiliated schools for their children. Despite that ruling, the 1st U.S. Circuit Court of Appeals, in October 2020, upheld a religious exclusion in Maine's tuition assistance program for high school students. Now IJ is asking the Supreme Court to take the case.
- Connecticut enacts a law limiting public access to court records in cases transferred from juvenile court to regular criminal court. Newspaper sues, alleging a First Amendment violation. Second Circuit: They're right! "A more narrowly tailored approach – with a presumption of openness but the availability of confidentiality upon a showing of necessity – would better balance the public's right of access against the dangers of stigmatizing juveniles by providing fuller protection when necessary."
- After a Connecticut prison guard is found liable for $300k in damages to an inmate whose beating he facilitated, the state graciously picks up the tab. Minus $142k for the cost of the inmate's incarceration. Also, minus $65k for the cost of the inmate's legal representation. Also . . . Second Circuit: Let's stop you right there. Except for some money the inmate has already spent and some child support that was validly withheld, the guard is still on the hook for $270k.
- "Am I being detained?" "You're not detained." "Am I free to go?" "No." Fourth Circuit: Not how that works.
- Although appellate courts hardly ever reassign cases to a different judge on remand, the Fifth Circuit brings us the rare doozy. Among other things, the district court judge told plaintiff's counsel, "I will get credit for closing two cases when I crush you"; participated in the deposition of the plaintiff; and prohibited the plaintiff from conducting discovery beyond one two-hour deposition after summary judgment briefing.
- Pretrial detainee seeks release from custody given the pandemic. Fifth Circuit (splitting from the Sixth): Habeas law is available to review the legal basis for the imprisonment, not to let someone out sooner because of the possibility of disease.
- Tarrant County, Tex. family court judge is fired in response to her husband's vicious campaigning against elected family-court judges. Fifth Circuit: Her position was a policymaking and confidential role where trust and loyalty are key. So even though this might otherwise be First Amendment protected activity, it isn't here.
- Federal law provided much tougher sentences for crack cocaine than powder cocaine offenses for more than twenty years. But in 2010, Congress started to fix this disparity with the Fair Sentencing Act, which decreased the penalties for crack, followed by the First Step Act in 2018, making the changes retroactive. What about people convicted of selling both crack and powder? They get sentencing relief, too, says the Fifth Circuit. Though statutory eligibility doesn't extend beyond offenses involving crack, it isn't limited to offenses involving only crack.
- In the middle of the night, Moraine, Ohio police officers discover a man asleep in the driver's seat with his hand on a gun. They wake him and order him to show his hands, which he does at least initially. Police say they saw him reach back for his gun, and they open fire and kill the man. An expert says that he was shot with his hand up in the air, not on the gun. Unreasonable use of deadly force? Sixth Circuit: Nope. Dissent: The mere presence of a gun in an open-carry state while in a locked car isn't an immediate threat.
- With another in the wave of COVID-related compassionate release request cases, the Sixth Circuit says that district courts can't deny such a request solely on the basis that the inmate remains a danger to the community.
- After being busted with over 184k images of child pornography, this criminal defendant downloaded another 10k images because (he later explained) he believed he "did nothing wrong" and "got bored." The probation officer nonetheless recommended a below-guidelines sentence because he believed the guidelines' enhancement for use of a computer was outdated. Seventh Circuit: The district court was not required to address the probation officer's recommendation, and the district court had good reason to impose a longer sentence given the need to deter further misconduct.
- In accordance with longstanding national tradition, a litigant filed suit in federal court challenging the erection of a nativity scene on government property as a violation of the Establishment Clause. Seventh Circuit: The district court found a constitutional violation under the so-called Lemon test, but we hold that Lemon does not survive more recent Supreme Court decisions. The nativity scene survives constitutional challenge because it fits within a long national tradition of using nativity scenes as part of broader holiday displays.
- United Airlines provides paid leave for jury duty and sick leave, but provides only unpaid leave for military reservists on short-term military duty. Seventh Circuit: USERRA entitles absent military personnel to the same "rights and benefits" as other employees, including "wages or salary for work performed," and that includes the right to paid leave. United says paid leave must be excluded because it involves payment for work not performed, but the statute's reference to "work performed" is merely illustrative. Still, on remand, the court will have to determine whether military leave is comparable to jury duty or sick leave.
- A sentence of 30 months for being a felon in possession of one (1) bullet "may seem, on its surface, disproportionate," says the Eighth Circuit, but don't worry—it is, in fact, totally cool.
- Asylum applicant: You can't deny my application on the grounds that I committed a crime because all the charges against me have been dropped. DHS: We have no idea if that's true. Eighth Circuit: Shouldn't you guys, like, try to find out?
- In which the Board of Immigration Appeals finds that attempted gang rape, death threats, and physical assaults of family members do not constitute a sufficient "amount of mistreatment" for an asylum application, and the Ninth Circuit says that's actually plenty, thanks.
- How much trouble can one floral-print fabric design cause? A lot, as shown by this Ninth Circuit panel's near-60 pages of disagreement over the Copyright Act, the relationship between final judgments and pre-trial orders, and the meaning of the word "any."
- Ninth Circuit: A previously deported alien does not commit "illegal reentry" simply by reentering the country when he's not allowed to. (Judge Bybee, dissenting: He commits illegal reentry when he reenters illegally.)
- Civil procedure buffs know that if you include too few facts in your complaint, you might be dismissed under Twombly/Iqbal, but what if you include too many? Eleventh Circuit: You'll be dismissed under our case law concerning "shotgun pleading." Concurrence: And here's how to avoid that.
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