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.
The latest episode of the Bound By Oath podcast is out now! It's a two-parter on municipal liability under Section 1983 and, we're told, a real corker. Featuring professors David Achtenberg and Fred Smith, civil rights lawyers Mike Laux and Easha Anand, and fearless journalist Radley Balko. Click here for Part 1.
- Fall behind on your property taxes in New York City, and the City may take your home away—even if the amount you owe is just a fraction of the property's value—and transfer ownership to private developers. Second Circuit: The district court found plaintiffs' challenge to this regime barred on various procedural grounds, but we disagree. (Fans of IJ may note that the Second Circuit's analysis extensively cites an earlier decision in an IJ case.)
- The "pre-publication review" requirements for former employees of various federal agencies dissuade employees from writing about certain topics, prevent them from participating in quickly evolving public debates, and, says the Fourth Circuit, are a-okay constitution-wise.
- When the City of Baltimore had a fleet of planes take high resolution photos of the entire city, often for 12 hours a day, enabling them to track the movements of just about everyone – that likely violated the Fourth Amendment, says the Fourth Circuit, by a vote of 8 to 7. (We discussed the original panel decision on the podcast.)
- Can a state court's unjustified delay in making court documents available to the public violate the First Amendment? The Fourth Circuit says it both can and did.
- Last year, the Federal Communications Commission barred recipients of federal subsidies for rural phone and internet providers from buying equipment and services from communications companies that pose a national security threat. A Chinese company challenges the rule and its designation as a threat. The Fifth Circuit applies Chevron analysis (steps 1 and 2) and sides with FCC. It also rejects argument that the Podunk FCC don't know what it's talking about in this sensitive area, and other sundry APA arguments.
- In the Fifth Circuit, claims against a Texas prison official will go forward. "[I]t is more than plausible that Hope's decades of solitary confinement alongside such conditions of mold, urine, and feces have caused the physical and psychological deterioration he alleges, and it is clear that such an allegation is sufficiently serious to invoke Eighth Amendment concerns."
- Does the Fourth Amendment's protection against excessive force apply against school resource officers, such that they might be liable for tasing a special-education student? Fifth Circuit: Well, thanks to our inconsistent (some observers might say hopelessly sloppy) pronouncements in the past, it's not clear. And it's going to stay that way. Qualified immunity.
- Tennessee lets certain classes of people vote absentee (for example, people over 60) but, as a general rule, first-time voters are not eligible for absentee voting. District court (September 2020): The first-time voter restriction is preliminarily enjoined. Sixth Circuit: The only plaintiff (or more precisely, the only person identified as a member of one of the associational plaintiffs) with standing is no longer eligible for absentee voting regardless. That's because the Tennessee Supreme Court has since interpreted the absentee-voting law such that the plaintiff wouldn't qualify. So the case is moot. Concurrence: Also, here are five pages on why the government should win if the issue ever comes up again. Dissent: The case absolutely is not moot, and here are four pages on why the government should lose.
- Seeking out the perp responsible for a potential parking violation, Hermann, Mo. police officer approaches man's front door around 9:00 p.m., knocks, and confronts him about the crime. After the officer grabs his wrist, the man retreats into his house, and the officer . . . tases him? Causing him to fall on a table and injure his chest and shoulder? Yikes! Eighth Circuit: Yikes indeed. If the man's account is true, then no qualified immunity for the officer; everyone knows you need a warrant (or an exception to the warrant requirement) before you go around arresting people in their homes.
- Families of victims of ISIS terrorism sue Google, Facebook, and Twitter under the Anti-Terrorism Act for allowing ISIS to better carry out its killing and organizing. The companies argue that federal law, Section 230, prevents the claims, and that they're not pled correctly. And the Ninth Circuit says the companies are mostly right, tossing most of the claims. (One judge recommends the case go en banc to narrow the circuit's understanding of Section 230 immunity.)
- Frustrated with the pace of corporate boards' progress toward gender parity, California enacts a law mandating that California corporations appoint a minimum number of women to their boards, with six-figure fines for each seat erroneously filled by a man. A shareholder of an affected company sues, arguing that it forces shareholders to perpetuate sex-based discrimination. The state argues, and the district court agrees, that he lacks standing. Ninth Circuit: It's odd that the state enacted coercive legislation but then argues that it isn't meant to change behavior enough to confer standing to challenge the law. The shareholder has standing.
- Alleged drug mule is on trial. During closing arguments, the prosecutor tells the jury that reasonable doubt "is something that you do every single day. So things like getting up, having a meal. You're firmly convinced that the meal you're going to have is not going to make you sick. But it is possible that it might not—that it might actually make you sick. You got in your car or you travel to the court today. It is possible that you may have gotten in an accident, but you are firmly convinced that—the likelihood that you'll be able to get to court safely." Ninth Circuit (over a dissent): This description trivialized a solemn task and understated the near certainty required to convict. New trial.
- Alabaster, Ala. officials' rezoning decision wrecks long-planned development, causing roughly $3 million in damages, and a jury awards roughly $3 million dollars in damages. Which seems just about right to the Eleventh Circuit.
- Company sells crypto tokens to develop new movie-streaming platform, which investors could redeem on the platform after launch. Celebrities promote it, including co-owner/rapper T.I. The tokens peak at 35 cents per on a crypto exchange market before the company, which never registered its tokens as securities with the SEC, fails. A man who purchased $3k worth of tokens sues for securities violations. (The SEC is also pursuing the men.) Eleventh Circuit: Alas, you did not Bring Em Out early enough and missed the statute of limitations. (Ed. note: Song reference courtesy of one Judge William Pryor, whose opinion invokes several other T.I. hits.)
- And in en banc news, the Fifth Circuit will reconsider precedent holding that amendments to Mississippi's felon disenfranchisement law, adopted in 1950 and 1968, removed the discriminatory taint from the original law, adopted in 1890.
In 2014, NYPD officers allegedly forced their way into Larry Thompson's home to investigate what turned out to be an unfounded complaint, tackling and arresting Larry in the process and then making false statements to a prosecutor to get him charged with bogus crimes. And though those charges were ultimately dismissed, the Second Circuit ruled last year that Larry's suit against the officers could not proceed because it wasn't sufficiently clear that the criminal proceedings against him ended in a way that "affirmatively indicate[s] innocence." That rule, which the Second Circuit has adopted along with six other circuits, is complete applesauce. Fortunately, the Supreme Court has agreed to hear Larry's case next fall. Click here for an IJ amicus brief elucidating why the Court should reverse. Or click here for a jaunty op-ed on the same topic at Law360 by IJ Attorney Marie Miller.