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.
New on the Short Circuit podcast: Mike Masnick of Techdirt sets the record straight on Section 230. Plus: when the government flies a drone over your house and takes photos, is that a search?
- Tennessee man and his mom participate in the January 6th incident at the Capitol, sporting tactical vests and (in the man's case) carrying a holstered taser. They enter the Capitol through an open door, pass police officers standing nearby, and see a few sets of zip ties that they snag. They roam the Capitol for about 12 minutes, including entering the Senate gallery, and then leave, apologizing to police on the way out. They vandalize nothing and commit no violence. Should they be held in jail pending trial? D.C. Circuit: Only if they pose an articulable threat to the community, which the district court hasn't adequately considered and ought to on remand.
- Lawyer in Queens falsifies some 100 asylum applications, so federal prosecutors charge her with asylum fraud. They also—because it is the specific policy of the United States Department of Justice to stack as many charges as possible—separately charge her with lying to the government and with identity theft, even though she did not, in any normal sense, steal anyone's identity. Second Circuit: Convictions affirmed. Concurrence: The stacking seems unfair, though.
- Practice tip: If the Third Circuit publishes redlines of your briefs, you are probably screwed.
- Local governments enjoy immunity from antitrust damages, but is a public hospital that operates in 47 locations across two (soon to be three!) states really a "local" anything? 'Tis, says the Fourth Circuit.
- Forward-thinking Jean-Noel Frydman bought and registered France.com in 1994, using it as a platform for his business's (also called France.com) France-related travel services. Following litigation in Paris's Tribunal de Grande Instance and Cour d'Appel, the domain name is transferred to the French Republic—or, more specifically, to Jean-Yves Le Drian, the Republic's Minister for Europe and Foreign Affairs. France.com (the business) sues France (the country) in the Eastern District of Virginia, claiming cybersquatting, trademark infringement, and more. District court: Much as it did during its last visit to the E.D. Va., France wins. Fourth Circuit: Correct; France is immune under the Foreign Sovereign Immunities Act.
- After an employee of the Texas Alcoholic Beverage Commission expressed concern that the Chairman's stock holdings might pose a conflict of interest, the employee was liquidated. Fifth Circuit: The employee only knew about the potential conflict because of her job with the Commission, so she was speaking as an employee and not a citizen. No First Amendment problem there.
- After fellow inmates at Coffee County, Tenn. jail caused their toilets to overflow, a detainee spent several days in a cell contaminated with urine and feces. Sixth Circuit: The detainee has sued the county, but this is not the county's mess.
- Following the 2017 Las Vegas shooting, in which 58 were killed and more than 500 injured by a gunman firing weapons equipped with bump stocks, President Trump ordered DOJ to propose rules banning the devices. The following year, DOJ published a rule classifying bump stocks as prohibited machine guns. Sixth Circuit: But they're wrong, and we owe no deference to their interpretation of a criminal statute. Dissent: Doesn't matter that the law is criminal, we still owe deference.
- "In competition a bruised (corporate) ego should be dealt with by hiring an advertising agency, not by hiring a lawyer." And with that, the Seventh Circuit denies relief to a manufacturer of standing desks that brought a defamation suit against a competitor who said plaintiff's desks were excessively lubricated.
- During a normal controlled buy, police ask an informant to buy drugs from a suspect. But what if the informant instead enlists an unwitting third party to buy the drugs? Does that make the controlled buy a less reliable basis to authorize a search? Seventh Circuit: No, at least not where police saw the third party enter the apartment and come out with drugs.
- When an officer responding to an armed robbery called for backup, no backup ever arrived—allegedly leading to a case of PTSD. Seventh Circuit: While these allegations remind us of the dangers police officers face and the courage the job requires, they do not state a constitutional claim.
- Chicago SWAT team members take their gear home—like night-vision goggles and rifles—so that they can respond quickly if they receive a call while off-duty. But the city requires that they take the gear inside their house rather than leaving it in the car, a process they estimate takes fifteen minutes. Does the city need to pay them for that quarter hour? Seventh Circuit: No. (The opinion does not mention any in-chambers experiments to test that length of time.)
- Released from prison in 1986, man waits all of 30 minutes before robbing an Illinois bank. District court (1987): Life imprisonment. Seventh Circuit (1987) (Easterbrook, J.): Affirmed. Seventh Circuit (2021) (Easterbrook, J.): I'm still here, guy. And because you robbed the bank in 1986, you are ineligible to seek compassionate release under 18 U.S.C. § 3582(c)(1), which applies only to people whose crimes postdate October 31, 1987.
- Woman serving a 120-month term of imprisonment for manufacturing meth petitions for compassionate release, citing her susceptibility to COVID-19 and Legionnaires' disease. District court: You were arrested after a meth lab was found in your kitchen, so home confinement is an unsuitable alternative to prison. Petition denied. Seventh Circuit: No abuse of discretion here.
- The University of Iowa admits that it violated the constitutional rights of a Christian student group by subjecting it to restrictions that it did not apply to other groups, but are the individual defendants entitled to qualified immunity? Eighth Circuit: Not on the free-speech and free-association claims, but yes on the free-exercise claim. Concurrence: No across the board. "The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity."
- The Eighth Circuit has the case of a Minneapolis police officer whose driver's license information was searched some 1,000 times by her fellow officers. (The opinion is vague on the details, but Wired reports that MPD officers were searching the license info of various women, sometimes in the middle of the night. There's also an allegation about rejected romantic overtures.) Alas for the searchee, there were evidentiary problems below—as suggested by the jury over-punishing just two lookups with $300k in damages—so the department and last two defendant officers are getting a new trial.
- Having already held that there is no Second Amendment right to carry concealed weapons in public, the en banc Ninth Circuit considers whether there's a right to open carry in public. Ninth Circuit: There is not. Dissent: 500 years of Anglo-American legal history begs to differ.
- Man prosecuted for robbery and various other crimes, but in which he only scored a total of seven dollars and a bottle of cologne, is held in jail pending trial unless he can make $350k in bail. Although cash bail is supposed to only be used sparingly on those likely to flee or who pose a risk to public safety and requires a judge to make an individualized assessment, the California Supreme Court recognizes "it's a different story in practice." As in the defendant's case, it generally comes down to whether you can cough up the funds in a uniform bail schedule. The court declares the current practice unconstitutional, that cash bail should only be used in rare circumstances, and that the accused's ability to pay must be taken into account.
- Long Lake Township, Mich. officials suspect property owners are illegally storing junk on their property again, but can't check because of all the fences and trees. Hey, that's no problem, because they have access to a drone which flies above the land several times taking photos which the township uses in a zoning enforcement action. After losing a suppression motion the property owners appeal and the Michigan Court of Appeals reverses. Distinguishing U.S. Supreme Court precedent on planes and helicopters hanging out above homes, it says drones can get closer and aren't expected. A dissent says nice try, but I don't think there's a way around those cases.
- And in en banc news, the Ninth Circuit will not reconsider its earlier ruling striking down a 2018 Department of Homeland Security rule that strips asylum eligibility from all aliens arriving in the U.S. between designated ports of entry. Judge VanDyke issues a salty dissent, accusing the original panel of "judge-jitsu," "chutzpah," "ham-fisted[ness]," "mischief," and "overt results-oriented judging."
Michael Jones of North Carolina is a fan of drones, and, a few years back, he started up a drone photography business. Among other services, he'd take aerial photos of land (for developers, for example) and use software to create orthomosaic images of the property. Enter the North Carolina Surveying Board, which says communicating any location, elevation, or dimension data about land requires a full-blown surveyor license. So does using orthomosaic software. So does creating 3D digital models of land or buildings. A First Amendment problem? Here at IJ, we certainly think so. So we've teamed up with Michael and his company to sue the Board and vindicate the rights of all drone operators to create and sell useful information about land. Find more information here.