The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

The Pledge of Allegiance, mandatory bar dues, and folk the police.


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

Friends, those fireworks you just heard a couple days early came from IJ headquarters across the river from 1 First Street. That's because this morning the Supreme Court said it will hear Carson v. Makin, an IJ case that asks whether state officials can exclude families from a generally available tuition assistance program if those families choose to send their children to a school that teaches religion. Click here to learn more.

New on the Short Circuit podcast: A Fifth of Qualified Immunity. Special Guest Nicolas Riley of Georgetown Law's Institute for Constitutional Advocacy and Protection joins the show to talk about some recent qualified immunity decisions from the Fifth Circuit.

  • An effort to amend the Constitution to guarantee women equal rights with men first mobilized in the 1920s, following the enactment of the Nineteenth Amendment. Congress passed the Equal Rights Amendment in 1972, subject to a 1979 deadline (later extended to 1982) for three-fourths of the states to ratify the amendment. The effort failed. Or did it? Virginia's legislature ratified the ERA in 2020—bringing the number of ratifications to 38, the threshold to amend the Constitution. (Unless one refuses to count votes after the lapsed deadline or one subtracts the five states that sought to rescind their ratifications.) The U.S. Archivist refuses to publish the ERA and certify its adoption as the 28th Amendment. First Circuit: Yeah, we're not touching the substance of this, as the plaintiffs all lack standing.
  • Thanks to a global pandemic, this Harvard student spent her study abroad semester in front of a computer screen. The study abroad provider declined to provide a refund. First Circuit: Under the terms of the contract, no refund required. And, no, that's not unconscionable.
  • Allegation: Inmate at Westchester County, N.Y. jail suffers a knee injury, which officials fail to adequately accommodate, leading to excruciating pain during showers and strip searches after family visits. District court: Temporary disabilities don't trigger the protections of the Americans with Disabilities Acts. Second Circuit: They sure do.
  • Fifteen-year-old actively participates in crime spree that includes murders, carjackings, and witness intimidation, landing him a mandatory life sentence. Reversed—no mandatory life for minors. He's then resentenced to 65 years. Reversed—the district court should have explained its reasoning better. How about 52 years? Affirmed—sentencing is a matter of discretion, and this is anything but unreasonable, says the Fourth Circuit. Dissenting, Judge Floyd would have reversed again for further consideration.
  • In the latest turn in a Baton Rouge, La. police officer's lawsuit against Black Lives Matter organizer DeRay Mckesson, the Fifth Circuit hands a victory to fans of state tort law and lawblogs by certifying a question to the Louisiana Supreme Court based in part on a theory it read on a blog somewhere. (We discussed this case on the podcast.)
  • Allegation: Texas high school teacher retaliates against student who refuses to write the Pledge of Allegiance. Student sues and teacher moves to dismiss on grounds of qualified immunity. District Court denies QI. Fifth Circuit: As it should have; there are factual disputes here that require further development. Dissent: The law clearly establishes that you can't be forced to say the Pledge; writing it is completely different.
  • Upon encountering a driver in the midst of a diabetic emergency, Amarillo, Tex. officers break the driver's window and push his face into broken glass on the ground. Fifth Circuit: Qualified immunity.
  • Illinois prison officials place an inmate in a cell with feces on the walls, a mattress covered in human waste, dead flies on the bed, and no running hot water. Seventh Circuit: Yeah, OK, but they gave him a new mattress after two weeks, gave him six cups of disinfectant solution, and gave him a pair of gloves. Plus they took him out of his cell for three hot showers per week. Troubling, but not unconstitutional.
  • Illinois man alleges that Chicago police fabricated evidence against him, resulting in his incarceration for seven months before being released on bond. Two years later, he's finally acquitted of the charges against him and sues the police for violating his Fourth Amendment rights. Seventh Circuit: But he needed to sue when released on bond, so the claim is time-barred (but it might be a different story if his bond conditions had been more onerous).
  • St. Louis cop chasing a man says he's "going to kill this motherf—er," and then does. The cop is acquitted and protests erupt. Cops approach documentary filmmakers videorecording the protests, who comply with orders to move back and sit on the ground. Saying "that's him," several cops drag one of the filmmakers away, place him on the ground face down, twice pepper-spray him, beat him until he loses consciousness, restrain him with zip ties, and arrest him for failing to disperse. The filmmaker sues the cops for a litany of constitutional violations and assault and battery. Eighth Circuit: No qualified immunity. (Ed. note: We've covered several previous cases stemming from these events.)
  • Man drives by Arkansas trooper, yells "f–k you!" (This is the court's expurgation. We think the real word might be "folk.") Retaliating for this constitutionally protected speech, the trooper arrests the man for "excessive noise." In 2019, the Eighth Circuit denies qualified immunity, and a judge later awards the man $1 in nominal damages and $15,000 in attorney's fees. Now back at the Eighth Circuit, the panel cleans up some minor issues and holds that yes, $15k in fees is just fine here, even for a dollar in damages. Don't mess with clearly established rights.
  • Man remains in jail for two weeks after Ames, Iowa police obtain surveillance video that shows he wasn't in apartment where assault, robbery took place. Wrongful arrest and detention? Eighth Circuit: Qualified immunity.
  • Did a St. Louis Community College professor charge at college board members during a public meeting? Or did he merely stumble forward after an officer gave him a bump? (See video at about the 3:30 mark.) Eighth Circuit: The district court needs to resolve those questions before we can address whether the officer subsequently body slamming the prof violated clearly established law. No qualified immunity (for now).
  • Though it is well established that Americans have no due process right to police protection, it is equally well established that they have an equal protection right not to be denied the same protections afforded everyone else. So holds the Tenth Circuit while denying qualified immunity in a tragic murder/suicide that everyone saw coming, but that police failed to take seriously because the perpetrator was a cop.
  • Plaintiff: The Supreme Court's recent cases suggest that I can no longer be required to pay mandatory dues to a bar association that engages in public advocacy I don't like. Tenth Circuit: Forced to choose between the strong suggestions of the Supreme Court's recent cases and the actual holdings of the Supreme Court's older cases, we're sticking with the holdings.
  • A 2014 change to Alabama law governing judicial process by which a minor can obtain an abortion without parental consent—so as to allow or require the participation of parents, the district attorney, and a guardian ad litem for the fetus—imposes an undue burden on women's rights, says the Eleventh Circuit, so it's invalid.
  • In which the Eleventh Circuit invokes the crime-fraud exception to attorney-client privilege to compel a political campaign's lawyer to disclose just what advice he gave the candidate about how to report campaign expenditures for furniture, Caribbean vacations, and lingerie.
  • And in en banc news, the Fifth Circuit will not reconsider its ruling that police officers who tased a gasoline-soaked suicidal man—resulting in his burning to death—are entitled to qualified immunity.
  • And in more en banc news, the Sixth Circuit will reconsider its ruling that the DOJ misinterpreted federal law when it issued regulations defining "bump stocks"—devices that allow semi-automatic rifles to be fired at automatic-rifle speeds—as illegal "machine guns."

The Supreme Court's decision in PennEast Pipeline Co., LLC v. New Jersey this week is a sneaky important win for the property rights of regular folks despite the parties being a private condemnor and a state. And that's because the federal gov't had urged the Court to use the case to announce a new rule that would make it almost impossible for property owners to oppose condemnations of their land for natural gas pipelines. In its decision, the Supreme Court roundly rejected the feds' ploy to strip private landowners of basic rights in a case that didn't involve private landowners—a course of action IJ urged in an amicus brief.