The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

The First Amendment behind bars, illegal antiquities, and architecture as expression.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

In 2019, IJ, Tyson Timbs, and Tyson's car secured a pathmarking victory for property rights when the U.S. Supreme Court held that the Excessive Fines Clause applies not just to the feds, but to the states as well. That decision didn't get Tyson his car back, though. The case was remanded to the Indiana Supreme Court, which remanded the case to the trial court, which ruled for Tyson again last year—a ruling from which the State of Indiana appealed (seriously) and which, at last, a majority of the Indiana Supreme Court affirmed yesterday. "Reminiscent of Captain Ahab's chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again," says the majority, en route to holding that forfeiting Tyson's car would indeed violate the Excessive Fines Clause. "[T]he seven-plus-year pursuit for the white Land Rover comes to an end." Congrats to Tyson and to White Whales everywhere.

  • African American firefighters in New York challenge the fire department's grooming policy. The men suffer from pseudofolliculitis barbae—a common condition among African American men sometimes called razor bumps—the primary treatment for which is growing a beard. Fire department policy prohibits beards, which it claims interfere with the seal on respirator masks. The firefighters sue, alleging violations of the ADA and Title VII. Second Circuit: Federal safety regulations expressly prohibit the wearing of respirators with beards, so the requested accommodations are unreasonable per se.
  • After the Swiss government seizes thousands of antiquities suspected of having been imported into the country illegally, the American owners of some 1,200 of those antiquities sue in U.S. federal court for their return. Second Circuit: You sued in the wrong federal court system; take it up with Switzerland.
  • Can victims of terrorism hold the terrorist organization's bank liable for their injuries? After over a decade of litigation and four appeals, the Second Circuit now says maybe, at least on an aiding-and-abetting theory, and remands for yet further proceedings.
  • You may see this case as a petty squabble over attorneys' fees, but the Third Circuit sees it as an exciting opportunity to teach us about the difference between supplemental and ancillary-enforcement jurisdiction.
  • In 2018, the Texas Secretary of State issued a press release announcing that voter registrations required ink signatures—but, says the Fifth Circuit, she doesn't actually have the authority to enforce that requirement and so cannot be sued to invalidate it.
  • In which the Sixth Circuit encounters a gentleman who sought to never pay his mortgage again through this one weird trick.
  • Eighth Circuit: Of all sad words of tongue or pen, the saddest are these—your merits defense was waived.
  • Missouri bans most abortions after eight weeks and all abortions when the doctor knows the mother is responding to a diagnosis of Down Syndrome. Eighth Circuit: Looks unconstitutional. Preliminary injunction sustained. (One judge, dissenting in part, thinks the Down Syndrome provision is too narrow to deserve an injunction.)
  • Does the publisher of Prison Legal News and The Habeas Citebook have a First Amendment right to mail unsolicited copies to prisoners? Eighth Circuit (2–1): Maybe. If the postcards-only policy of a jail in Baxter County, Ark. amounts to a total ban on access, that's a problem. Remanded for fact-finding.
  • "These notices of appeal are entirely deficient. They appeal an order entered on a day when no order issued, from a district court that does not exist, to a court of appeals that does not exist." So says the Eighth Circuit, a very real court entering a very real dismissal.
  • Woman is shot in her Orem City, Utah home. Husband says he stepped out of the kitchen upon hearing the shot and saw her falling to the ground. Suicide? The husband says so, but evidence at his ensuing murder trial shows a distance of 12 feet between where the husband says he saw her falling and where her body was found. The husband is convicted of murder. But wait! The diagrams and calculations were inaccurate; the wife moved only about nine inches. The medical examiner retracts his homicide finding, and at a new trial, the husband is acquitted. He sues the prosecutor and police for fabricating evidence. District court: Qualified immunity all around. Tenth Circuit: Not quite. Taking the husband's allegations as true, the prosecutor shared fabricated distance-traveled evidence with the medical examiner, so no qualified immunity for that guy.
  • Can squatters invoke the Fair Housing Amendments Act against their unwilling landlords? Ninth Circuit: Um, no.
  • Circuit Breakers (that's you, dear readers) may recall a September opinion in which two-thirds of a Ninth Circuit panel took issue with a prosecutor's repeatedly telling the jury that the presumption of innocence no longer applies to the defendant. On panel rehearing, three-thirds of that panel now say that the prosecutor's statements probably didn't affect the outcome of the defendant's trial. Or more precisely (because we're in federal habeas land), that the state court's conclusion that the prosecutor's statement was harmless was not an unreasonable application of federal law.
  • Mentally unstable inmate stabs his sleeping cellmate in the eye with a pair of scissors. The cellmate, now permanently blind in that eye, asserts that he had told prison officials he was afraid for his safety and that the mentally unstable inmate had a history of assaulting his cellmates. He files suit under the Federal Tort Claims Act. Eleventh Circuit: No can do. Inmate-housing-placement decisions are a policy-laden endeavor that fall within the "discretionary function or duty" exception to the FTCA. Dissent: The gov't has no discretion to violate the Constitution, so the statute's exception shouldn't extend to tortious acts that are also unconstitutional. (Circuit split alert!)
  • Palm Beach, Fla. man wants to knock down his traditional beachfront mansion and build a 25,000 sq ft midcentury modern home that reflects his philosophy of simplicity in lifestyle. The town: Your proposed house doesn't fit our vision of beauty and harmony, so no permit. Over the course of 136 pages, an Eleventh Circuit panel spars over whether the proposed house is expressive conduct protected by the First Amendment. The majority concludes it is not. Dissent: "That architecture is an expressive art is a proposition that has stood unchallenged for millennia." Otherwise, coin-operated shows of adult films and anodyne elevator music are protected while Monticello and Philip Johnson's Glass House are not.
  • Georgia inmate—a serial litigant who has filed hundreds of federal and state cases and appeals—filed the current suit challenging the prison's enforcement of its beard-length policy. He contends they forcibly shave him in violation of his religious beliefs and in an unsanitary and violent manner. Eleventh Circuit: Please leave us alone. Dissent: The inmate's allegations are worth taking seriously, given the serious risk of hepatitis spreading via dirty razors.

Wayne Nutt is an engineer. He trained as an engineer, and for decades he practiced engineering in North Carolina, which did not require him to obtain an engineering license. Now that he's retired, Wayne wants to talk about engineering—and that, North Carolina says, is a crime. Wayne has teamed up with IJ to protect his First Amendment rights. Learn more here.