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 2016, federal security officers at a VA hospital inexplicably attacked José Oliva, a 70-year-old veteran, as he was about to go through a metal detector, putting him in a chokehold, slamming him to the ground, and wrenching his arm behind his back, causing extensive injuries. Last year, the Fifth Circuit ruled that José's suit could not proceed because the Constitution provides José no remedy against federal officers no matter how badly or maliciously they behave. That cannot possibly be right, so now José, represented by IJ, is asking the Supreme Court to take his case. Click here to read more.
- Ordinarily, intelligence agencies can refuse to respond to FOIA requests when it would imperil sensitive information to even confirm or deny whether records exist. Can they still do that when the President of the United States has confirmed the records' existence via tweet? D.C. Circuit: Possibly not, but the president would need to tweet a more specific tweet than the tweet he tweeted here.
- Can the government search your cellphone, without a warrant or probable cause, merely because you are crossing the border? Yes, holds the First Circuit. "Basic" searches require no suspicion at all; and, with mere "reasonable suspicion" (less than probable cause) border agents can conduct an "advanced" search involving the use of external equipment to review, copy, and analyze your data. Moreover, contrary to the Ninth Circuit's prior decision, searches are not limited to contraband and can seek out evidence of other crimes.
- Is an offer to pay $82.5k in settlement of "each of the Causes of Action" raised in a lawsuit an offer to settle the whole case for $82.5k, or is it an offer to pay $82.5k for each of the 8 claims raised (which is $660k)? Second Circuit: It is neither, and you people need to write more clearly.
- Second Circuit: Connecticut's imposition of reporting requirements on cigarette manufacturers who have not signed the 1998 Master Settlement Agreement certainly injures those manufacturers, but it does not violate their rights.
- The vast majority of cases heard by the Board of Immigration Appeals are decided by unpublished opinions. Nominally nonprecedential, these opinions are nevertheless frequently used by BIA, immigration judges, and government lawyers. But they're not used by lawyers representing immigrants, because the government doesn't make them publicly available. Second Circuit: Then they'd better start. Dissent: FOIA allows parties to request and receive documents; it doesn't allow us to compel ongoing public production of documents. SCOTUS better resolve this.
- Perhaps tired of answering hypothetical questions about hypothetical crimes in order to decide whether certain state-law offenses qualify as "violent felonies" under the Armed Career Criminal Act, the Fourth Circuit in this decision certifies the hypothetical to the Virginia Supreme Court.
- The owners of 106 acres of undeveloped Talbot County, Md. waterfront property challenge changes to zoning regulations, which had the effect of limiting permissible housing density on the land, as a regulatory taking. No dice, holds the Fourth Circuit. Sure, the changes reduced the value of the property from $3.2mil to $1.9mil, but even far greater reductions in value have been upheld against takings claims.
- Arlington, Tex. police responding to a 911 call about a suicidal man discover him holding a gas can in a bedroom smelling of gasoline. One allegedly says, "If we tase him, he is going to light on fire." They pepper spray him, watch as he douses himself in gasoline, and then tase him. He bursts into flames and dies; his family's house burns down. Fifth Circuit: Qualified immunity.
- Allegation: Woman temporarily staying with her cousin is repeatedly raped and sexually assaulted by her cousin's husband, an assistant warden at the Louisiana State Penitentiary. After his arrest, the district attorney refuses to investigate, gives him preferential treatment, and ensures that he's not indicted. Fifth Circuit: Can't sue a prosecutor for failure to prosecute or investigate. Concurrence: Shame on you if true, DA.
- In 1984, when Tennessee established its 911 line, it must have seemed like a straightforward idea to pay for emergency call centers out of charges collected by telephone companies. In today's very different telecommunications landscape, the Sixth Circuit issues a knotty disquisition rejecting attempts to collect those same fees from providers of VOIP services.
- Roma's Ristorante & Lounge, in East Troy, Wisc. is a favorite of Yelp contributor Debbi K., who, on August 27, 2020, enjoyed the chicken and ribs with choice of pasta or potato. On February 24, 2016, however, Roma's parking lot was the site of a drug-related sting operation gone wrong; a Walworth County deputy sheriff fired into a moving vehicle, killing one of the passengers. The dead man's estate sues the deputy. And to trial the case must go, holds the Seventh Circuit; fact questions about the incident preclude qualified immunity at this stage.
- Throughout the 1980s, Cook County, Ill. Circuit Court Judge Thomas Maloney took bribes in exchange for acquittals. (His Honor ended up being sentenced to 15 years' imprisonment.) To mask the enterprise, the judge would come down especially hard on defendants who didn't cough up. A defendant in a 1980s murder trial didn't pay the judge, while his co-defendant did. But to deflect mounting suspicion Judge Maloney convicted them both anyway. State courts: NBD; there's no evidence Judge Maloney was actually biased against the non-paying defendant. Seventh Circuit: BFD; "[d]ue-process claims based on judicial bias require an objective assessment of the likelihood of bias, not just a subjective assessment of actual bias." (For those interested in the backstory of Cook County's corruption scandal, check out this book.)
- Agitated man is arrested at a halfway house after destroying several pieces of property. He's taken to the Pulaski County, Ark. jail. At the facility, he "shrug[s]" off a deputy's hand, at which point another deputy slams him to the ground, knocking him unconscious. And to trial the case must go, holds the Eighth Circuit; fact questions about the incident preclude qualified immunity at this stage.
- Nebraska woman gets intrauterine device implanted, suffers complications, and sues the manufacturer for breach of its duty to warn. Eighth Circuit: The manufacturer supplied enough warnings to the doctor who implanted the device, so Nebraska's learned-intermediary doctrine means the company is not liable to the woman. Judge Kelly, dissenting: How about instead of guessing what the
NevadaNebraska Supreme Court would do, we just ask them, using certification? (This week's Eighth Circuit decisions also display a three-way, intra-circuit split between italicizing citations (Judge Stras), underlining citations (Judge Kelly), and italicizing and bolding citations (Judge Benton). SCOTUS ALERT?)
- Two Minnesota attorneys provide a masterclass on how not to lawyer. Seeking to protect adult film copyrights, they file infringement lawsuits and threaten public disclosure and crippling financial penalties ($150k per infringement) unless people illegally downloading the films fork over $4k. The attorneys start uploading movies to get more people to download them, form a series of corporations, obtain copyrights themselves, and even create their own films, all in an effort to get people to fork over the "settlement" money. They're eventually caught. One is convicted of money laundering and fraud, sentenced to 14 years in prison, and ordered to pay $1.5 mil in restitution. Eighth Circuit: Affirmed.
- And in en banc news: Did a California trial court violate an accused rapist/strangler's due process rights when it allowed introduction of evidence that he had raped and strangled another woman three months earlier (a crime for which he was separately convicted and sentenced to death)? Fourteen judges on the Ninth Circuit think not, but that's still one short of what's needed for rehearing en banc.
In 2018, Carter Walker, a local reporter, submitted FOIA requests to find out what Lancaster, Penn.'s district attorney does with forfeited property and how the proceeds are spent. The DA's office resisted, leading to litigation, throughout which Carter, represented by IJ, won most of the requested records. This week, the Pennsylvania Commonwealth Court declared that the final category of records Carter was seeking should indeed be made public: the names of bidders of forfeited property at public auctions. Why might that be important? Just take our word for it. (Or don't.) The opinion is here.