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.
Should federal courts of appeals act as advocates for the gov't and raise defenses—unprompted—on the gov't's behalf? You can probably guess where we come down on this. For more details, dig into a recent IJ cert petition featuring a buffet of Younger abstention, sua sponte decision-making, and the Dormant Commerce Clause.
- Here's a legal-ethics brain-twister: If you previously served as the general counsel for a nonprofit, can you represent clients suing that nonprofit over matters in which you previously represented the nonprofit? If you said, "Yes," then you, too, might end up having your license to practice law suspended for 90 days, as the D.C. Circuit did to Judicial Watch founder and former general counsel Larry Klayman.
- Professional photographer takes photos of Prince, and then licenses one of the photos to Andy Warhol for a Rolling Stone piece. Andy Warhol proceeds to make a series of paintings of Prince based on the photo. Photographer: That's copyright infringement. Andy Warhol's Foundation: It's fair use. District Court: Fair use. Second Circuit: Let's not go crazy.
- New York City sues oil companies under state nuisance law for damages stemming from global warming. But according to the Second Circuit that state law is preempted by federal common law because of the issue's interstate and international character. Further, federal common law "functions much like legal duct tape," and gets ripped off when Congress speaks. Which it has done with the Clean Air Act. And there's no role for international federal common law either because international diplomacy is a tricky thing federal courts must shy away from. Thus, NYC, no claim for you.
- Does the Fair Housing Act—which prohibits racial discrimination in housing—require landlords to address tenant-on-tenant harassment? Second Circuit (en banc): Landlords are not the boss of their tenants' behavior towards other tenants, so no. Case dismissed. Dissent: If the landlord didn't intervene because of the tenant's race, that's actionable. The case should go forward.
- Retired probation officer strolling around New Rochelle, N.Y. is approached by two plainclothes police officers. Retiree's version: The officers didn't identify themselves as police, were physically rough, over-tightened the handcuffs, and banged my head on the (unmarked) police car. Officers: We identified ourselves, used only reasonable force to restrain the recalcitrant suspect, and immediately released him once we verified that he was not the misdemeanant we were seeking. District court: The retiree "should be thanking his lucky stars" his injuries were minor; this case is way less important than many of my other cases; and the defendants win. Second Circuit: Given the parties' different accounts of what happened, there are obvious fact disputes bearing on whether the officers used excessive force. To trial the case must go. And while we're at it, no qualified immunity if the retiree's account of the incident is accurate.
- Publicly intoxicated man is placed in the Botetourt County, Va. jail to sober up. A few hours later, he's found dead. Man's estate sues his custodians for displaying deliberate indifference to his serious medical needs (a Fourteenth Amendment violation). District court: Case dismissed. Fourth Circuit: Not so fast. The man was lethargic, semi-conscious, and barely able to walk, and the officers knew he had consumed prescription narcotics—all strongly suggestive of a drug overdose, which reasonable officers would have acted to address. The case may proceed to discovery.
- The federal government maintains the Terrorist Screening Database (TSDB, as it's known in the biz), which is used to screen travelers in airports and at the border. Twenty-three people (who allege they are in the TSDB) sue to invalidate the database under the Fifth Amendment's Due Process Clause. Fourth Circuit: Much like the Sixth and Tenth Circuits, we emphatically decline to facially invalidate the TSDB.
- Police hear from a confidential informant that a guy with a certain physical description and license plate number is a drug dealer. Later the CI tells the police that the same guy told the CI he just got some new product and it's available for sale. Officer finds a man who matches the description and sees him shake someone's hand in a parking lot. Based on his "training and experience" the officer initiates a stop-and-frisk and finds illegal drugs. Fourth Circuit: Motion to suppress should have been granted. Handshakes just aren't that suspicious a thing. Concurrence: The whole "training and experience" thing has gone way too far.
- Woman starts using prescribed opioids as a teen following an injury and gets hooked. She fills forged prescriptions, using half and selling half. She estimates that she sells 52k pills over two years, though the gov't's math is a bit higher—175k pills. She's sentenced to 210 months. Fourth Circuit: Way too long. Dissent: Her sentence was at the low endpoint of the Sentencing Guidelines. It may not be a sound policy, but that doesn't make it legally unreasonable.
- Elderly Texas inmates housed in a geriatric unit allege that the prison warden didn't do enough to respond to the COVID-19 dangers. By the time of trial, nearly half of the inmates had tested positive and 19 had died. District court: The warden isn't doing enough. Here's 17 things he must do going forward, including weekly testing and following cleaning plans. Fifth Circuit: This litigation helped motivate prison officials to act, saving countless lives, but a forward-looking injunction is unwarranted.
- Allegations: Transgender woman is arrested for unlawful possession of a weapon and booked at the Dallas County, Tex. jail. Officer demands that she show him her genitals so he can confirm whether she has a penis or a vagina. She complies. Over the next couple of years, she's repeatedly arrested, classified as male, held with male inmates, and forced to shower with them. She sues, among others, Dallas County and the county sheriff in her official capacity. Fifth Circuit: Accepting the complaint's allegations as true, the county had a policy of strip-searching transgender detainees for the sole purpose of determining their gender and classifying them solely on their biological sex. Whether or not that policy violates the U.S. Constitution is for the district court to decide on remand.
- Suicidal man waves gun in the air, ignores police commands. An Austin, Tex. officer shoots him. The man drops the gun and stumbles away. The officer shoots twice more, killing him. Officer: I didn't see him drop the gun. Fifth Circuit: It's pretty clear from the video, and—since it's clearly established that it's unreasonable to use deadly force after a suspect no longer poses a threat—this goes to a jury. No qualified immunity.
- Shawnee State philosophy professor refuses to refer to transgender student by the student's preferred pronouns because his religious convictions forbid it. After the university rejects several proposed accommodations (including using the student's preferred pronouns while including a statement in the syllabus that it is being done under compulsion), the professor eventually settles on using the student's last name. The student thereafter actively participates in class and receives a high grade. The professor is disciplined. He sues alleging violations under the First Amendment's Free Speech and Free Exercise Clauses. Sixth Circuit: And his case should not have been dismissed.
- Want to run as an independent for statewide office in Michigan? Great! All you'll need is 30k signatures from registered voters obtained more than three months before the election, before you even know who the major-party nominees are, with least 100 of those signatures from half of the state's 14 congressional districts. That's in contrast to major party candidates who just have a primary or convention. Also, just FYI, no independent candidate has actually succeeded in making the ballot in the 30 years this system has been the law. Still want to run? There's good news! The Sixth Circuit found all this to violate the First Amendment, and upheld the district court's new 12k signature threshold.
- Is the CDC's order prohibiting evictions for non-payment of rent an example of "other measures" in this list of powers Congress has delegated to the HHS Secretary—"[I]nspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary"? Probably not, says the Sixth Circuit, denying a motion to stay the district court's judgment filed by a group of landlords.
- Missouri man walks into an IRS office and volunteers that he owned jewel mines, was in deep with the drug cartels, and New Mexico authorities were investigating him for embezzlement. Several months later, authorities search his house, discover 364k $1 coins depicting deceased U.S. presidents. IRS agents seize the coins, remove the packaging, run them through a coin counter, deposit $364k in an IRS account, and place the coins in circulation. Yikes! The coins actually belong to the man's ex-wife (she got them in the divorce). The feds transfer the $364k in the account to her, but she sues alleging that she's owed more given that the coins are valuable collector's items. District court: Indeed, the guvvies owe the woman $95k. Eighth Circuit: Sovereign immunity. The agent's decision to send the coins for processing (rather than saving them as he discovered them) was discretionary, so the ex-wife can't get help under the Federal Tort Claims Act.
- Denver police officers receive training that people have a First Amendment right to record them in public. But only courts can say what's clearly established, says the Tenth Circuit, and we haven't said so yet (and won't here). So qualified immunity for police who illegally searched a man's tablet in retaliation for his filming their use of force while arresting someone.
- And in en banc news, the Third Circuit will not reconsider its ruling that federal law prohibits the operation of safe-injection sites, where drug users can inject drugs under the supervision of medical professionals.
It is completely legal to travel with any amount of cash on domestic flights. And if you check the Transportation Security Authority's online list of items that are—and are not—prohibited (475 items), you will not find any restrictions on cash. And yet TSA screeners detain travelers traveling with money and turn them over to law enforcement, often DEA, who will take their money with no suspicion of criminal activity and without filing criminal charges and then subject them to a months- or years-long bureaucratic maze to try and get it back. Which is unconstitutional. And this week, a federal judge rejected the gov't's motion to dismiss an IJ class action challenging TSA's and DEA's airport cash seizure practices. Click here to learn more.