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: bar wars and mandatory associations.
- The FDA permits the use of electric-shock treatment for a wide variety of conditions, including drug, alcohol, and tobacco addiction. But in 2020, the agency banned the treatment for self-injurious behavior. A clinic that offers the treatment, along with the parents and guardians of patients who have benefited from the treatment, challenge the ban as exceeding the FDA's authority. D.C. Circuit (over a dissent): And they're right. Federal law prohibits the FDA from regulating the practice of medicine; once a device is approved for one medical use, only the states can prohibit its use for other purposes.
- Capitol insurrectionist requests bail while charges against him are pending, and the district court says it's a close call but no. D.C. Circuit: And based on his history of racist and antisemitic statements, his expressed hopes for a second Civil War, his showing up to work with a Hitler mustache, and an incident involving frozen corn cobs and a potato gun emblazoned with the Confederate Flag and the words "WHITE IS RIGHT," that decision was not clearly erroneous.
- The SEC demands, as a condition of settling any civil-enforcement action, that settling defendants agree never to publicly question their guilt. Can a think tank that wants to publish the speech of people currently gagged by these agreements sue under the First Amendment? D.C. Circuit: It cannot, at least to the extent these agreements are incorporated into the final judgments of sister courts. And we choose to assume they are all so incorporated. (This is an IJ case.)
- Putnam County, W.V. sheriff detains a man walking along the road with an AR-15-style gun on his back. Man: I was walking to a friend's house to go coyote hunting. Fourth Circuit: The man's rifle is "the weapon of choice" in mass shootings, he was stopped a week after the Parkland shooting while wearing military-style clothing and less than a mile away from a school, and the sheriff thought he could've been under 18 (and thus not eligible to open carry). The stop was fine.
- Religious readers of Short Circuit should stretch their memories all the way back to last week, when the Tenth Circuit held that Oklahoma's bar-membership requirements did not violate the First Amendment before reading the Fifth Circuit's conclusion that Texas's requirements totally do. And, in a companion case about Louisiana's state bar, the Fifth Circuit earns your editors' eternal enmity by referring to this flurry of lawsuits as "bar wars" before we could make that joke ourselves. (We discuss this flurry on the podcast.)
- In 2015, hundreds of bikers gather at Waco, Tex. restaurant to discuss new legislation affecting motorcyclists. Attendees include members of the rival Bandidos and Cossacks motorcycle clubs, and police watch from the perimeter. Around noon, a shootout erupts, leaving nine dead (mostly Cossacks), 20 injured, and 177 arrested. No one has been convicted, and the only criminal case that went to trial revealed that Waco police killed several of the dead bikers. Motorcycle enthusiasts: The prosecutor ordered the arrest of "all bikers wearing colors," which was done via fill-in-the-blank warrants lacking probable cause and based on lies. Fifth Circuit: That claim may proceed against the prosecutor and two detectives.
- Coleman County, Tex. jailer watches a suicidal man wrap a phone cord around his neck and pass out. Instead of calling 911, the jailer calls his boss, who arrives ten minutes later. Only then does the jailer enter the cell, unwrap the cord, and call paramedics—but neither try to resuscitate the man, who dies. Fifth Circuit: Qualified immunity. Dissent: "Qualified immunity is not the judicial equivalent of the Armor of Achilles, an impenetrable shield that governmental actors can wield to insulate themselves from liability no matter how flagrant their conduct."
- In 2018, two years after a school shooting, Madison, Ohio school district officials vote to allow teachers to carry concealed weapons. Concerned parent attends school district meeting but is removed after the members deem his statements "personally directed," "abusive," and "antagonistic." A First Amendment violation? The Sixth Circuit says yes; the gov't can't hold public meetings and then demand the public be nice to them.
- Not a perfect Easter Sunday: Kentucky state trooper visits a family home—intending to help one family member retrieve her belongings from the house—and then (after the patriarch tells him he smells "like pig shit") punches the patriarch and winds up arresting a good chunk of the family. Sixth Circuit: Given the Supreme Court's decision in Caniglia, it is now clear this type of home visit requires a warrant. And, while this happened before Caniglia, even back then it was clearly established that a warrant was needed absent some ongoing disturbance or harm to the community at large. No qualified immunity here.
- South El Monte, Calif. officials enter massage business—without consent or a warrant—and inspect non-public areas for violations of massage regulations. A Fourth Amendment violation? The Ninth Circuit says no. California massage businesses fall under the "closely regulated industry" exception to the warrant requirement (despite a recent SCOTUS decision stressing the narrowness of the doctrine), and local regulations limit the inspections to "regular business hours," which sounds reasonable enough.
- What sentence is appropriate for a paranoid schizophrenic who robbed $896 from a bank ("without violence or fanfare") because he believed that getting himself arrested (which indeed happened very quickly) was the only way to get the police to protect him from imaginary bad guys? Tenth Circuit: The district court sentenced the gentleman to 63 months, right at the top of the guidelines range, and that sounds about right.
- A woman's complaints about illegally-parked cars led—via an encounter with Miami law enforcement—to her arrest and involuntary commitment for a mental examination. Eleventh Circuit: While the officer claims to have had probable cause to believe the woman was mentally unwell, and the woman claims she was just vexed about chronic parking violations, that's a question of fact that needs to be resolved after a trial. The district court erred by crediting the officer's version of events.
- Gov't contractor affixes ankle monitor to one-legged man waiting to stand trial on gun charge. Guess which leg. While the man's prosthesis and monitor stay at home, he commits a murder. Can the victim's family sue the gov't under the Federal Tort Claims Act for negligently hiring the contractor—a company knee-deep in litigation for a history of falling down on the job? D.C. District Court: No.
- And in en banc news, the Fifth Circuit will reconsider whether federal courts have personal jurisdiction over a Japanese company whose container ship collided with a U.S. Navy destroyer in Japanese territorial waters, killing seven sailors and injuring dozens.
- And in real estate news, the one-time home of Justice Bushrod Washington is for sale. (Not Mount Vernon. Come on.) Hat tip: John Elwood. Hat in hand: Please listen to our podcast on the privileges and immunities of citizens of the United States, something Justice Washington had a handle on.
Last month, the Illinois Supreme Court interpreted a clause in the state's constitution that dates back to Magna Carta and that protects a fundamental right: access to the courts. Heady stuff. But then the court applied rational basis review to the challenged provision—a $50 fee to access the courts in mortgage foreclosure cases. But then the court struck down the fee. Are we taking crazy pills? Anthony Sanders, the director of IJ's Center for Judicial Engagement, sorts it all out over at CJE's blog—part of a weekly feature on state constitutional cases that we like to call: the State Con Law Case of the Week. Click here to read about the case.