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.
Pasco County, Florida punishes residents for hypothetical crimes that they have not committed. The sheriff calls it "predictive policing," and if his algorithm predicts you might fall into a life of crime, his office will make sure that you do: surveilling and harassing people (and their relatives and friends) with repeated visits to their homes, repeated citations for minor code violations, warrantless stops and seizures, and arrests over pretextual and insignificant infractions—all these things and more "to make life miserable" (in the words of a former deputy). This week, four Pasco County residents filed a lawsuit to put a stop to the program. The Tampa Bay Times has the story.
New on the Short Circuit podcast: Sometimes there's Supreme Court precedent you can distinguish and sometimes there's Precedent you can't. Listen in to find out whether the former or the latter stands in the way of challenges to the CDC's eviction moratorium and mandatory bar association fees.
- If your understanding of Section 230 of the Communications Decency Act comes from things you read on Twitter, you might be surprised to learn that "the fundamental purpose of Section 230(c)(2) is to provide platforms like Vimeo [and Twitter] with the discretion to identify and remove what they consider objectionable content from their platforms without incurring liability for each decision." Thus, per the Second Circuit, Vimeo is not liable for deleting the account of a church that promoted gay conversion therapy.
- There are a ton of issues in the 172 pages of opinions from the Second Circuit, discussing whether an injunction is warranted against several abortion protestors for their Saturday morning activities outside an abortion clinic in Queens, New York. But now that those are all figured out, this is probably the last we'll hear about this sort of dispute.
- Is first-degree manslaughter a categorically violent crime? The en banc Second Circuit devotes many pages and much scholarly analysis to the question, ultimately concluding that yes indeed it is. Five judges dissent. Another judge concurs but disputes the rationale. And five judges concur but write separately to note the "absurdity of the exercise we have now completed."
- Federal prisoner spends 30 days in isolation after filing grievances against a correctional officer. Allegedly, the warden straight out told him that he was placed in isolation as retaliation for filing the grievances. Fourth Circuit: That may be, but there's still no remedy under Bivens.
- A federal agent threatened to "blow [the] head off" his son's girlfriend's ex-boyfriend and then caused the ex-boyfriend to be arrested. Fifth Circuit: Since the allegedly unconstitutional seizure here occurred in a parking lot, whereas Bivens occurred in a private home, the damages remedy created by the Supreme Court's Bivens decision does not apply. Judge Willett, concurring: Today's result is inescapable under our decisions limiting Bivens, but this raises the troubling question whether there is any remedy for these kinds of violations by federal agents. I add my voice to those lamenting today's rights-without-remedies regime. (Bonus: Judge Willett mentions Oliva, a case where IJ has filed a cert petition.)
- Skip the Fifth Circuit's holding on the contract dispute, and jump to page nine for a Willett-ian ode on the value of public access to court records: "Americans cannot keep a watchful eye, either in capitols or in courthouses, if they are wearing blindfolds."
- After years of review, the U.S. Fish & Wildlife Service issued an opinion authorizing the harassment of an ocelot (a kind of endangered cat). Fifth Circuit: Since the harassment won't threaten the continued existence of the species, the agency decision stands.
- An off-duty Garland, Tex. police officer travelling on the highway with his wife sees a man running from Mesquite, Tex. police officers who are yelling at him to stop. The off-duty cop directs his wife to drive toward the man, and, as they approach, the cop opens his door to stop the man. The impact knocks the man to the ground, breaking his ribs and skull, causing his brain to bleed and his ear drum to rupture. Excessive force? Fifth Circuit: We need more facts to figure out if the cop can have qualified immunity.
- A Guatemalan citizen living in Mississippi is picked up by ICE and civilly detained. Meanwhile, she's also charged criminally in federal court for misusing a Social Security number. The magistrate judge in her criminal case orders her released on bond, under the Bail Reform Act; she's not dangerous or a flight risk. But ICE continues to detain her civilly, invoking the Immigration and Nationality Act. Fifth Circuit: Like the six other circuits to have addressed the issue, we see no problem with ICE civilly detaining someone who has been released pending a criminal trial.
- Does a federal prisoner deserve compassionate release because there's been a COVID-19 outbreak at his prison and he's vulnerable because of his multiple sclerosis? Sixth Circuit: We can't say the district court was wrong to keep him locked up. (Judge Moore: But judges must take the virus's threat to prisoners seriously. Judge Readler: But Judge Moore's point is unreliable dicta. Judge Moore: But look who's talking.)
- Man spends nearly three years in jail before being acquitted of murder. He sues Chicago police for attempting to frame him, and a jury awards him $4 mil plus another $50k in punitive damages. Any reason to revisit the verdict? Not a bit of it, says the Seventh Circuit.
- In 2018, the Supreme Court held that the First Amendment forbids public unions from requiring nonmembers to pay fees for the benefit of being represented by the union in collective bargaining. Illinois union: But now our First Amendment rights are being violated, because we're required by state law to represent non-paying nonmembers—and we want nothing to do with them. Seventh Circuit: That's a pickle, but it's unripe. Case dismissed for lack of subject matter jurisdiction.
- Missouri requires schoolchildren to be immunized, but religious objectors can opt out by filing a form. Objectors: Even making us sign that form violates the Speech Clause and the Free Exercise Clause and the Equal Protection Clause. Eighth Circuit: No, no, and no.
- Driving through Idaho in the middle of the night, a man supposedly changes lanes without first signaling for a full five seconds. He's pulled over—illegally, a court would later find. His allegation: After he passively refused to cooperate with police, they pulled him out of his car and threw him face-first on the pavement while holding his hands behind his back. Ninth Circuit: If true, no qualified immunity.
- Montrose County, Colo. cops pursue man fleeing a traffic stop. Allegation: After they apprehend him, one of the cops punches the man, hits him in the face with a dog chain, and lets police dog Oxx attack him. Excessive force? Tenth Circuit: Sure looks like it. No qualified immunity.
- "What began as a case about the meaning and application of the seldom-litigated Thirteenth Amendment—which, as relevant here, prohibits 'slavery [and] involuntary servitude'—presents itself to us as one about the relatively ho-hum issue of standing." So begins the Eleventh Circuit in a bankruptcy case (yes, a bankruptcy case). The bottom line: Stay tuned—the heart of the question might well return to the appellate court.
- Miami taxi driver passes out and collides with a pole. Passerby calls 911, suggest the driver is intoxicated. The driver hops out of the cab and runs "like a zombie" up the entrance ramp to I-95. A cop arrives and tases the driver three times, the driver bites the cop's finger, and the cop shoots the driver dead. (His behavior seems to have been caused by a brain infection.) Besides a blurry video from a nearby business that doesn't depict much of anything, the only living eyewitness is the cop. Eleventh Circuit: Not excessive force.
- While attending a concert, 17-year-old suffers a grand mal seizure. After a good Samaritan carries her to the lobby, she encounters several bad Samaritans wearing the uniforms of Rainbow City, Ala. police officers. Four or five of them restrain the still-seizing girl on the floor while another tases her multiple times in the chest. When the girl's mother arrives and tries to explain that her daughter is having a seizure, she is tackled, handcuffed, and tased until she urinates on herself (she then spends the night in jail). Eleventh Circuit: No need for a case on point, and no qualified immunity for anybody.
- Man leaving an Atlanta-area strip club climbs into the passenger seat of a car. Occupying the back seat is a man suspected of stealing $600 in cash from another patron. When the car begins to drive away, a police officer dispatched to investigate the theft starts blasting, hitting the front-seat passenger twice. Video footage contradicts the officer's claim that the shooting was justified, and he resigns. The passenger sues the city for failure to properly train its officers in use of force. Eleventh Circuit: And his case can go forward.
- And in en banc news, the Seventh Circuit will not reconsider its earlier holding that a 16-year sentence was too light for a would-be jihadist who planted fake bombs given to him by the FBI, then tried to solicit the murder of the agent who gave him the fake bombs, then tried to stab a fellow inmate to death for drawing a picture of the Prophet Muhammed. Three judges dissent, arguing that "hard cases make bad law."
- And in further en banc news, the Tenth Circuit has vacated its earlier decision to grant en banc rehearing of a panel decision upholding the federal ban on "bump stocks." Five judges dissent from the un-bancing, issuing four opinions in which all of them join.
Are you looking to kick-start a career in public interest law? Are you motivated by working on cutting-edge constitutional cases, stopping government abuses, and championing individual rights? Good news, IJ is hiring for Law and Liberty Fellows to join in August/September 2022. This Fellowship is IJ's preferred path for recent graduates or post-clerkship candidates with less than two years of experience. The Law and Liberty Fellowship is based at our headquarters in Arlington, VA. We are currently looking for Fellow to join us in August 2022. The program runs through August 2024. Upon completion, Fellows are considered for permanent employment. Visit the Careers section of our website, www.ij.org/jobs, to learn more and apply. Application deadline extended through March 19.