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.
Friends, please join us on Zoom from 12–2 pm ET next Tuesday, April 20, as we wish Section 1983 a happy 150th birthday. The symposium will feature a splendid array of scholars and litigators discussing the past, present, and future of the nation's most important civil rights law. Register now!
- Tinker, Tailor, Soldier, Tweet (redux)? After previously remanding for the district court to determine whether a U.K. financier could be subject to personal jurisdiction in D.C. for tweets alleging that a D.C. resident was a "Russian intelligence asset," a panel of the D.C. Circuit now reconsiders—and decides to certify some questions to the D.C. Court of Appeals instead.
- Dr. Pepper may be the world's best soft drink (it's a fact), but the drink's manufacturer had less success in this D.C. Circuit labor-law appeal. While the company claimed that a union should not be certified for positions it had already announced plans to eliminate, that argument fell flat given that the company had announced similar plans multiple times before and never followed through.
- This week on "Judge Selya's vocab quiz": contretemps, encincture, interstitial, pellucid, and vel non.
- The pension fund for Virgin Islands government employees faces a $3 billion (with a "b") shortfall. Third Circuit: The district court correctly found the Virgin Islands government liable for $18.9 million (with an "m") in delinquent contributions, but improperly ordered the government to cover the entire shortfall. An island of 106,405 persons simply cannot cover these amounts. Concurrence: While we find the government liable for that smaller amount, we do not (and cannot) actually compel the government to pay anything at all.
- Lawful permanent resident, ordered deported after a controlled substance offense, obtained a full and
unconstitutionalunconditional gubernatorial pardon. So he gets to stay, right? Third Circuit: Nope.
- "Is there anything materially deceptive or misleading about a debt collection letter that accurately itemizes a debt as including '$0.00' in interest and fees when the debt cannot accrue interest and fees?" Tell us, Third Circuit; the world needs to know! Third Circuit: That accurate statement obviously is not deceptive or misleading.
- In 1995, a Pittsburgh, Pa. teenager allegedly burned down his home to get the insurance proceeds. In responding to the blaze, three firefighters died. Local, state, and federal prosecutors form a joint prosecution team to try the alleged arsonist in state court, and he's convicted. The state courts eventually grant him a new trial because witnesses at the first trial received money from the feds for their testimony. The state (yes, yes "Commonwealth") then dismisses all charges. Whew! But wait, now a federal grand jury has indicted him for federal crimes relating to the fire. Man: Double jeopardy! Third Circuit: Nope. The original state-court case was set aside because of a trial error, so double jeopardy doesn't enter the picture.
- An alien may seek to avoid deportation by showing a clear probability that, if deported, he will be persecuted because of his membership in a "particular social group." El Salvadoran citizen: my particular social group is "former Salvadoran MS-13 members." Board of Immigration Appeals: Not good enough; that group is too "diffuse." Fourth Circuit (over dissent): Even applying Chevron deference, that's wrong. On its face "former Salvadoran MS-13 members" provides clear benchmarks for the boundaries of the group. Case remanded to the Board of Immigration Appeals (which may well deport the man on different grounds).
- After a woman spoke out against a city employee at a public meeting, she was publicly shamed and followed home by the police. None of which, says the Fifth Circuit, is nearly scary enough to amount to a First Amendment retaliation claim.
- A Louisiana man invents and trademarks "Metchup," a blend of mayonnaise and ketchup (except sometimes when it's instead a blend of mustard and ketchup). Did Heinz infringe his trademark by briefly displaying a picture on its website featuring "Metchup" as a user-suggested name for its own mayo-ketchup blend? Fifth Circuit: Yeah, no. But we remand for fact-finding to see whether the Metchup impresario (who has sold some 60 bottles of marvelous Metchup over the past decade) should have his trademark canceled outright.
- An intoxicated man walks into a Dallas County jail lobby, where he eventually dies while being violently restrained. Fifth Circuit: There's clear video of the whole thing, and all the force used was reasonable. Qualified immunity.
- In 2013, the Supreme Court ruled that settlements where a drugmaker pays a would-be generic manufacturer to delay entry into the market can sometimes violate antitrust laws. In the first case it reviewed after that decision, the FTC ruled that this particular settlement was totally illegal. And, says the Fifth Circuit this week, it was well within its rights to say so.
- The Fifth Circuit milks the udderly mooving story of the beef between two ranchers that—no bull—led to a high-stakes prosecution for modern-day cattle rustling. Held: 70 months is kosher.
- Ohio prohibits doctors from performing an abortion when they know that the woman's reason for the abortion is that her fetus has Down syndrome and she does not want a child with Down syndrome. Which is constitutional, according to the en banc Sixth Circuit. Eleven opinions span 111 pages addressing a host of arguments, including originalism, eugenics, and whether Ohio's law burdens a woman's right to abortion at all.
- Wisconsin governor holds press briefing previewing the major initiatives to be unveiled in his budget address later that evening. Open only to invited members of the media, two reporters are turned away. Turns out they're not on the media list because the governor's staff doesn't deem their think-tank-funded news service sufficiently newsy—an exclusion the reporters deem ideologically motivated. Seventh Circuit: Nah. The governor's staff examines neutral factors in considering whether to include a particular media outfit on its list, and there's no evidence of viewpoint discrimination.
- At sentencing for a felony murder conviction, the defendant's attorney says only: "Judge, I'm going to defer to [the defendant] if he has any comments. I don't have anything to add." The man gets the maximum sentence—130 years in prison. Seventh Circuit: There's inadequate assistance of counsel, and then there's a total breakdown by counsel so profound that the defendant need not prove prejudice to get habeas relief. Dissent: He still needs to show prejudice.
- From late one night in Chicago comes the bizarre case of a man suddenly firing a gun into the air outside a nightclub. An off-duty officer responded by shooting the man. When the man's friend picked up the fallen gun, the officer then engaged in a standoff with the friend, using the injured but living original gunman as a human shield, sometimes pointing a gun to his head. Is this reasonable under the Fourth Amendment? You can decide for yourself by watching the security footage here. But the Seventh Circuit won't. Qualified immunity!
- Springfield, Ill. man and accused drug dealer is in the back of a squad car when he swallows 3.5 grams of heroin (which your editors understand to be an awful lot). When he wakes up at the hospital, he says some incriminating stuff to the cops. The district court finds the statements voluntary and admits them, and the man is convicted. Seventh Circuit: Sure, the statements weren't coerced. But the man still might not have waived his right against self-incrimination if he hadn't been (in technical terms) super-high. Please sort that out on remand.
- Only lawyers can take a sordid tale of smuggled body armor and surface-to-air missiles and turn it into a dispute about venue and waiver. In a related story, here's a Ninth Circuit opinion about venue and waiver.
- Allegation: Social workers lied in order to get a court to order medical examinations of minor children without their parents' consent. Ninth Circuit: And it's clearly established you can't do that. No qualified immunity.
- Defendant: I can't be charged with extortion because the only thing I did was threaten to bring a meritless lawsuit against a "well-known singer-songwriter." (pssst … it was some guy named Andy Grammer, whom your 40-something summarist has never heard of.) Ninth Circuit: Did you miss the word "meritless" in there?
- In 2007, federal prosecutors reached a secret agreement with Jeffrey Epstein under which he would not be prosecuted for sexually abusing more than 30 minor girls. Did the agreement, and the steps prosecutors took to conceal it, violate the victims' rights under the Crime Victims Rights Act to be treated with fairness and dignity and to confer with the prosecutor? Eleventh Circuit (en banc, 185 pages of split opinions): No need to answer that. The CVRA does not allow victims to file a stand-alone case to assert their rights in the first place. Even though that was the only way they could have asserted their rights here. Because the non-prosecution agreement was hidden from them. (We discussed the original panel holding on the podcast.)
- Eleventh Circuit (sitting en banc): Prisoners can, in fact, recover punitive damages even in the absence of physical injury.
- In not-going-en-banc news, five judges dissent from the Fifth Circuit's refusal to reconsider whether the Department of Health and Human Services can delegate certain questions to the private Actuarial Standards Board.
- And in some-people-think-it-shouldn't-be-going-en-banc news, a rare dissent from a grant of en banc review in the Sixth Circuit.
Once again, officers have seized property from someone engaged in perfectly legal behavior—flying with cash. And when Jerry Johnson went to court to fight for the return of his $39,500, which Jerry planned to use to purchase a used semi-truck at auction for his trucking business, the judge held that Jerry could not challenge the state's forfeiture because he hadn't proven his innocent ownership of the seized property. This week, IJ appealed Jerry's case to the Arizona Court of Appeals, arguing that requiring Jerry to prove his own innocence flips the law on its head and undermines our most basic constitutional guarantees. Fox News 8 has the story.