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: Special guest David Lat joins the panel to talk website compliance with the ADA and a smartphone app's liability for a high-speed crash.
- Do police officers have a right to due process or a hearing before a prosecutor decides to stop calling them as witnesses in light of multiple alleged false statements? First Circuit: We're pretty sure the prosecutor just gets to make that call.
- For decades, immigration judges and the Board of Immigration Appeals have used "administrative closure" to clean up their dockets. In 2018, then-Attorney General Jeff Sessions puts an end to the practice, concluding that there is no statutory authority for it. Third Circuit: Yes there is; IJs and the BIA can take "any action . . . appropriate and necessary for the disposition of [their] cases." Dissent: "[T]he authority to 'dispose' of immigration cases does not include permission to delay a decision forever."
- Retired Air Force lieutenant colonel, who is white, goes to the Quantico Marine Corps Exchange to buy some shoes. When approached by an African-American clerk who uses the honorific "sir" to address him—which she would have known he doesn't like if only she'd read his web page (which your editor will allow you to Google on your own)—he asks a series of increasingly bizarre rhetorical questions, one of which features a racial slur. He's arrested for violating Virginia's law against "abusive language." Fourth Circuit: The "fighting words" exception to the First Amendment is really, really, really narrow, and video shows no one was likely to be provoked to imminent violence.
- In 2019, the Texas Legislature enacted a law banning so-called pop-up early voting sites. The Texas Democratic Party and others sue the Texas Secretary of State, seeking to invalidate the law. Fifth Circuit: The Secretary of State has nothing to do with administering or enforcing the challenged statute, so the case should be dismissed.
- Apparently displeased with society's revisiting the legacy of Christopher Columbus, man vandalizes a statue of a Tiguan woman on Yselta Del Sur Pueblo land, near El Paso, Tex. Federal courts have jurisdiction over some crimes committed on tribal lands with an Indian victim: non-Indians are subject to federal prosecution, while Indians are not. Who bears the burden of proving Indian status in a prosecution? Fifth Circuit: It's an affirmative defense, so the defendant must raise the issue, and only then must the gov't prove it. Conviction affirmed. (Circuit split alert: This aligns with the Ninth Circuit but splits from the Tenth.)
- To increase revenue for the county, Cuyahoga County, Ohio official develops a plan to house detainees and prisoners from nearby communities in exchange for big bucks, leading to severe overcrowding and severe understaffing among nurses. As a result, pretrial detainee—who was identified as a suicide risk and told a prison nurse he was suicidal—receives no treatment and commits suicide. His estate sues. Sixth Circuit: And it has alleged a valid excessive force claim. The case moves forward. (Other claims that defendants didn't appeal will as well.)
- Under Ohio law, properties that are delinquent on their taxes can be seized and sold to satisfy the debt, with any surplus being returned to the owner. Or, they can be seized and given to a land bank, in which case the owner gets nothing. Plaintiff: Which is a Fifth Amendment taking of my equity in the house. Sixth Circuit: It certainly sounds like it. Case un-dismissed.
- Is an officer "criminally reckless" when he kills an innocent motorist while speeding through a residential neighborhood at speeds nearing 100 mph en route to a routine traffic stop that nobody had asked him to help with in the first place? The Seventh Circuit thinks he just might have been.
- In 2019, Juarez Rogers was arrested for a murder in Indiana. Indiana police soon get a tip that his son, Cortez Juarez Rogers, was galivanting about trying to intimidate witnesses. Hobart, Ind. police accidentally get an arrest warrant against Cortez Javan Rogers, an Illinois resident who had nothing to do with any of the other Rogerses' misdeeds. Chicago police arrest Cortez Javan Rogers on the Indiana warrant, and he's held in jail for about a day until the mistake is detected. Seeking recompense for the snafu, Cortez Javan Rogers then sues the Hobart Police Department (and others) in Illinois federal court. Seventh Circuit: No personal jurisdiction. (But in a seeming random act of kindness, the panel issued a one-sentence order affirming the district court's dismissal in March, giving the plaintiff time to re-file within the relevant limitations period in the Northern District of Indiana.)
- High school football players attend a football camp at Northwest Missouri State University. At the same time, the school is also hosting a camp for high-school cheerleaders. One of the cheerleading coaches believes she sees some of the football players looking into her window from theirs while she is changing. At the direction of campus police, the football coach detains seven of the players, and police grill them for hours. Nobody admits anything, and no charges are filed. The players sue for violation of their Fourth Amendment rights. Eighth Circuit: Qualified immunity; all of this was completely reasonable. Dissent: There was no reason to believe it was these seven players, which makes the seizure unreasonable.
- Mexican family travelling to Arizona for a bit of shopping is intercepted by border patrol agents, who misuse field drug tests and falsely conclude that windshield wiper fluid in the family car was actually "liquid drugs." Dad spends 40 days behind bars after agents coerce him into a false confession by threatening to scatter his wife and teenage children to prisons across the U.S. Ninth Circuit: Although the agents "may have been negligent and even abusive," they were not "completely lacking legitimate policy rationale" because drugs are bad. So, you can't sue. Dissent: The agents failed to follow the simple instructions in the field tests. They don't have the discretion to do that.
- A man robbing a Eufaula, Okla. bank opens fire, takes a customer hostage, and forces her to drive his getaway car. Police run their car off the road; the hostage exits with her hands up and runs into a field in an (unsuccessful) effort to escape her captor. A shootout ensues. The robber uses his hostage as a human shield, and police shoot her at least ten times. She survives and sues. Tenth Circuit: Her claim that one of the cops intentionally shot her as she exited the car with her hands up should not have been dismissed. Just because the cop said he didn't see her as he fired doesn't mean that a jury will agree, and there's a good amount of evidence contradicting his account.
- Mayes County, Okla. deputy sheriff responding to a call about a possibly suicidal man fires 13 rounds within seconds of arriving, killing the man. The deputy claims that he shot in response to the man firing at him; his widow claims the deputy's shots were unprovoked. A jury rules in the deputy's favor. Can the county be held liable under a state-law negligence claim? Tenth Circuit: No. By ruling for the deputy, the jury must've found that the man shot first, and such a determination means the county can't be held liable for negligence.
- Eleventh Circuit: Georgia sheriff's deputy alleged to have fondled, kissed, and peeped on a female inmate is entitled to 11th Amendment sovereign immunity under binding circuit precedent. Concurrence(s): That precedent "precludes on the basis of state immunity all those incarcerated in Georgia county jails from vindicating their rights in federal courts." It's wrong and we should change it.
- In 1994 (pre-Lawrence v. Texas), an 18-year-old male is convicted of having consensual sex with a 16-year-old male under Idaho's "Crimes Against Nature" statute. He would not have committed that crime had the 16-year-old been a female. He serves seven years in prison and years later moves to Montana, where because of his conviction must register as a sex offender. Montana federal district court: That is unconstitutional in all the ways, including under rational basis scrutiny on his equal protection claim.
Friends, 44 states allow doctors to prescribe and dispense medications directly to patients. Doctor dispensing is safe, it's commonplace, and it saves patients time, expense, and hassle. But until this week it was almost totally illegal in Montana—a testament to the power of the pharmacy lobby, which wanted all prescriptions to go through them. Last year, IJ challenged the restrictions under Montana's state constitution, and we're pleased to say that this week a bill making Montana the 45th state to allow doctor dispensing was signed into law. The bill passed unanimously—and also with the support of the state pharmacy association, which acknowledged that "the root of our previous opposition to similar bills was protectionism," and declared that "taking care of patients . . . means being amenable to change and looking ahead and not being so protective of our profession." Holy cow, that never happens. Good on ya, Montana Pharmacy Association. Click here to read more.