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, the Supreme Court has long held that cities are not entitled to qualified immunity. But last year, when the Sixth Circuit granted qualified immunity to a Euclid, Ohio police officer for a fatal shooting, it also dismissed the claims against the city—because the shooting, though it may have violated the Constitution, hadn't violated clearly established law. This left the victim's family with no one to sue. Click here to read an IJ amicus brief urging the Supreme Court to grant cert in the case and put a stop to the disturbing trend of lower courts smuggling qualified immunity into municipal liability jurisprudence. And click here to read about Euclid's "highly inappropriate" police use-of-force training that trivializes police brutality.
- After being released from federal prison, Washington, D.C. man restarts his life and goes three years with nary a blemish on his record. Then he's busted for possessing less than two ounces of marijuana and is ordered to spend nine days in jail, to be served on weekends. Yikes! After his third weekend, they won't let him out! He was supposed to serve an additional two years in district jail following his release from federal prison, but had been led to believe his sentence had been reduced. D.C. Circuit: Which might violate procedural due process, if the District often screws up like this.
- A prisoner files his fourth successive habeas petition on actual innocence, and the Third Circuit holds, "[a]gainst all odds," that he might even win. (The feds are trying to keep him in prison for "using" a gun in a drug crime. The "use" was trading drugs and the gun.)
- Baltimore woman is murdered while her four children slept upstairs, and her boyfriend is convicted on the basis of a positive gunshot residue test. A slew of exonerating evidence bubbles up: Another man confesses to the murder, one of her children comes forward to say that he saw another man force his mother into the basement the night of the murder, and doubts arise about the gunshot residue test. The state drops the charges, and the man walks free after 19 years in prison. He sues, wins a $15 mil judgment against a Baltimore detective for withholding and fabricating evidence. Fourth Circuit: Just so. Also, the man's claim against the city should not have been dismissed.
- On the last night before the end of a trial, the defendant takes the stand at 7:13 PM. At 8:03, the judge recessed for the night, ordering the defendant not to speak to his attorney overnight. Fifth Circuit: We understand the risk of improper coaching, but this violated the Sixth Amendment right to counsel. New trial.
- Shreveport, La. police seek to pull over a car being driven without brake and license plate lights. The driver continues for two minutes—not speeding—until he pulls into a driveway. Police ask the man to exit the car, he does, and they conduct a pat-down and discover a pocketknife. He verbally expresses his unhappiness with the situation but allegedly doesn't physically struggle. Instead of telling him he's under arrest and giving him a chance to allow himself to be handcuffed, they force him to the ground and repeatedly punch and kick him. District court: Sure seems to be excessive force. Fifth Circuit (over a dissent): Qualified immunity.
- The Alliance for Good Government, a New Orleans-based nonprofit, sues the Coalition for Better Government, another New Orleans-based nonprofit, for trademark infringement under the Lanham Act. After multiple trips to the Fifth Circuit, the Alliance wins not only their claim, but attorneys' fees. Fifth Circuit: Which were perfectly reasonable. Dissent: Uh, guys, the Lanham Act only applies to commercial speech, and all these groups do is endorse political candidates (not to mention the First Amendment problems you're creating).
- Odawa Indians have inhabited for centuries what is now considered northern Michigan. The Sixth Circuit brings us the history of the Band's 19th-century negotiations and treaties with the federal government, concluding that the Treaty of 1855 did not create a reservation for the Band, but, rather, provided allotments of land for Band members to obtain permanent homes in Michigan.
- Sixth Circuit: "While the plaintiffs cite an ample number of cases that support the general notion that the Due Process Clause protects the right to bring up one's children, they point to no case law from either the Supreme Court or this circuit that indicates there is a clearly established right to use corporal punishment that leaves marks." Thus, qualified immunity for the social workers who investigated when a 14-year-old showed up to school with marks on his arms from being beaten with a belt.
- After a "tiff" in which an Indiana man's gov't employer "might have … called him a dumb motherf***er" and he "might have" called her vulgar names as well—leading to his demotion, reduction in salary, and loss of a government car—man goes to the feds to report his boss for illegally using gov't resources for political campaigns and demanding kickbacks from employees. An FBI agent instructs him to search the boss's office for incriminating documents, which leads to charges against both the boss and her administrative assistant. The boss takes a plea bargain, and the administrative assistant is convicted at trial. Seventh Circuit: That office was definitely a private space, and you guys definitely didn't get a warrant. Try again without the illegally obtained evidence.
- Allegation: Unilever sells men's antiperspirants and women's antiperspirants at different prices. Eighth Circuit: So what? Dicta: Just buy the men's brand.
- Allegation: Nevada guard (perhaps at the behest of higher ups) snoops on phone calls between prisoner and lawyer representing him in constitutional litigation against other prison guards. Does the Fourth Amendment protect against such snooping? Ninth Circuit: There's no prior case that says so. Qualified immunity. Partial dissent: We should have answered that question here.
- In the first of many trials against Monsanto alleging that their product Roundup caused non-Hodgkin's lymphoma, a jury awarded Edwin Hardeman $5 mil in compensatory damages and $75 mil in punitive damages. District Court: Wow, that's a lot, how about $20 mil? Hardeman: I would really like $75 mil. Monsanto: Federal law preempts the lawsuit, the district court made a series of errors in allowing in evidence, and $75 mil in punitive damages is unconstitutional. Ninth Circuit: No, No, and Yes. Judgment stands and $20 mil is really the outer limit here for what would be constitutional. Dissent: The judgment should stand, but $20 mil is unconstitutional.
- A Pryor Mountain wild horse walks into a bar. The bartender asks, "Why the long face?" The horse says, "That's just the shape of my skull. I actually feel fantastic because the Ninth Circuit revived a petition to classify me as a member of a federal protected distinct population." The horse then launched into this whole thing about the Fish and Wildlife Service and the Administrative Procedure Act, much to the bartender's chagrin.
- And in en banc news, the Ninth Circuit will not reconsider its decision that a bed-and-breakfast owner has a Bivens cause of action against a border patrol agent under the First and Fourth Amendments. Some judges dissent, including Judge Owens, who writes: "Congress didn't care what I thought back in 1997 when I was 25 years old, and it probably cares less now as I approach 50" while citing his student note, published (along with the first Harry Potter book) in that year.
When Elijah Durham lost his job as a chef during the pandemic, he and his wife Ashley decided to become their own bosses, opening up their SOL Burger food truck in Tarpon Springs, Florida. But soon after, city officials banned food trucks from the city except for a small strip of land on the outskirts of town. And the ban has another exception: Restaurants can operate food trucks on their own property anywhere in the city. City officials have repeatedly admitted the ban exists to protect the restaurants from competition, and this week, Elijah and Ashley teamed up with IJ to file a lawsuit under the Florida Constitution, which does not permit such naked protectionism. Click here to read more.