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.
This week, the Tennessee Supreme Court granted review to an IJ challenge to Nashville's restrictions on home-based businesses. The city admits that our clients, a music producer and a hairstylist, don't bother their neighbors in the slightest, but it has insisted that it can ban them from serving clients in their homes—even as other businesses like daycares and short-term rentals are allowed to do so. But the zoning power is not limitless, and under the Tennessee Constitution people have a right to use their property to earn an honest living (unless there is a real and substantial threat to the public) on an equal footing with their neighbors. Click here to learn more.
- American citizen claims he renounced his citizenship years earlier—when he became a Swiss citizen—but he hasn't formalized the change by appearing in person at a consulate to fill out the necessary paperwork. D.C. Circuit: Citizens have a right to expatriate, sufficient to confer standing. On the other hand, the in-person requirement is a reasonable way to ensure the expatriation is truly voluntary. But, on the third hand, the State Department in this case hasn't fully explained the steps this particular citizen needs to take to renounce his citizenship, so we're remanding to the agency for a fuller explanation. Dissent: Since the gentleman is happily living in Switzerland, with no ties to the U.S., he's not injured by the government's refusal to relinquish its claims.
- Creator of the #airbnbwhileblack hashtag sues the home-sharing company, alleging that its practices of requiring users to provide photos and use their true names have a disproportionate impact on Black users. D.C. Circuit: But those claims must be arbitrated, whether or not the plaintiff clicked that particular link in the terms of service.
- Woman drives from California to DC to meet face-to-face with President Trump to inform him of the conspiracies law enforcement and casinos have perpetrated against her. After arriving in DC, she is duly arrested when she storms up to . . . the Treasury Building? ("No, the female cop told me, she's like, 'But you know that's not the White House right?' and I was like, well I feel silly now.") D.C. Circuit: But she definitely thought it was the White House, and there were no other problems with the prosecution, so conviction affirmed.
- In 2018, the State Department issues a series of guidance documents and clarifications to guidance documents, the upshot of which is to bar adoption agencies from "holding" a child for certain prospective parents, to the exclusion of other prospective parents. D.C. Circuit: Guidance like this, which speaks with the force of law, is a legislative rule that requires notice and comment.
- Brooklyn entrepreneur sells "preferred outcomes to encounters with law enforcement," such as police escorts to cut through traffic and approving gun licenses. In order to get the benefits, he provides lavish gifts to high-ranking NYPD officers, including trips to Vegas on a private jet with a prostitute, jewelry, and meals at expensive restaurants. Once the non-corrupt arm of the law catches up with him, he's convicted of bribery and sentenced to four years in prison. Just so, says the Second Circuit.
- Federal law prohibits licensed firearms dealers from selling handguns to people under the age of 21. Fourth Circuit: Eighteen-year-olds served in the militia, so it would be pretty strange if they didn't enjoy the full protection of the Second Amendment. Dissent: With all due respect, "the majority's decision to grant the gun lobby a victory in a fight it lost on Capitol Hill more than fifty years ago is not compelled by law."
- Texas justice of the peace holds prayers before opening courtroom proceedings. Prayers are led by religious leaders from a variety of denominations, and the judge explains participation is voluntary. After several unsuccessful challenges, a district court finally enjoins these "theopneustically-inspired" proceedings. Fifth Circuit: That injunction is stayed pending appeal. The district court's opinion seems inconsistent with recent Supreme Court decisions; in fact, the district court cited a recent dissent from Justice Kagan, but, of course, a dissent is a dissent.
- Planned Parenthood: We applied for a license to provide abortions in Louisiana years ago, and state officials have dragged out the process seemingly indefinitely, neither granting nor denying the license. Fifth Circuit: Well, we can't order the state to grant the license; "there is no free-standing federal right to receive an abortion-clinic license." But federal courts can order the state to make a decision promptly, so back to the district court to determine whether that is the appropriate course of action.
- Does it violate the First Amendment to force Michigan lawyers to join and pay money to the State Bar of Michigan? Sixth Circuit: Unlike other recent (sometimes extremely recent) cases in other circuits where the courts partially ruled for similar lawyers, these plaintiffs didn't bring a "germaneness" challenge, and therefore the claims are fully controlled by on-point Supreme Court precedent that hasn't (yet) been overruled. (We discussed those other cases on the podcast.)
- We know the Supreme Court has basically told us never to apply the Rooker-Feldman doctrine again, says this Sixth Circuit panel, but it hasn't specifically told us not to apply it to non-final orders. So we're still gonna do that. (Dissent: C'mon, guys.)
- Does it violate a guy's reasonable expectation of privacy to put three cameras on utility poles and turn them on his house for 18 months? Seventh Circuit: Under the Supreme Court's standard, no, as there are cameras everywhere these days. But we want to state for the record that the circular reasoning that the standard uses is pretty messed up and suggest "it might soon be time to revisit the Fourth Amendment test established in Katz."
- After a Loves Park, Ill. woman is told to go the hospital, she's nowhere to be found. Her doctor can't find her. Her emergency contact doesn't know. There's trash piling up outside her home. Can police perform a warrantless welfare check? Sure. And what if it turns out she was in the hospital the whole time, but she's a hoarder and her house is disgusting? Can code inspectors perform a warrantless condemnation? Sure, that's an exigent circumstance too. And what if there are 37 cats in there? Can animal control perform a warrantless extraction with a metal tool called "cat grabbers"? Seventh Circuit: "[E]mergencies breed exceptions—and this case is littered with emergencies." (Such a shame they may have killed one of the cats.)
- If a suspect is on his knees with his hands in the air, officers shouldn't use a running tackle to finish taking him to the ground. No qualified immunity, says the Eighth Circuit.
- Is it misleading to call honey "100% New Zealand Manuka Honey" if pollen counts show the bees visited other flowers, too? Come for the puns, stay for the apiology, as the Ninth Circuit affirms dismissal of this putative class action against Trader Joe's.
- Ninth Circuit: "For over a decade, Bradford Lund — the grandson of Walt Disney — has languished in perhaps the Unhappiest Place on Earth: probate court."
- A wise woman once wrote, "Dance like nobody's watching. Email like it may one day be read aloud in a deposition." And thus the story of Social Tech. Social Tech applied to trademark the term memoji before Apple decided it would be a cool name for those cartoon versions of iPhone users. But the law says there must be good-faith use of the mark in commerce to trademark it. So Social Tech really wanted to release its memoji before Apple released theirs. As in, "[i]t's better if we split up the updates, so it looks like we have more of them for the lawsuit." And, "we are just waiting for the trademark registration to file the lawsuit and get PAID." And, "We are lining up all of our information, in preparation for a nice lawsuit against Apple, Inc! We are looking REALLY good. Get your Lamborghini picked out!" We'll let you guess who won at the Ninth Circuit.
- We all know that the parent-child relationship is fundamental. But what about the child-parent relationship? Ninth Circuit: Not so much. In challenging the denial of a U.S. citizen son's nonresident father's tourist visa application, the son overcame the general rule against judicial review of consular decisions denying visa applications by proving bad faith on the part of State Department agents. Even so . . . because there is no constitutionally protected fundamental liberty interest in the relationship between a child and a nonresident parent, the son didn't state a claim.
- Man confesses that he and two friends abducted Ada, Okla. convenience-store clerk, raped her, and stabbed her to death, after which they doused her body with gasoline and burned down an abandoned house with her body in it. Almost no evidence connected him to the crime beyond his confession, which conflicted with nearly all of the facts (including that she was shot to death and her body hadn't burned). Nevertheless, he's convicted twice and sentenced to death twice. Tenth Circuit (over a dissent): The man demonstrated his innocence, and the state suppressed important evidence—the conviction can't stand. (The events were the subject of a John Grisham book and subsequent Netflix documentary.)
- Speaking of Netflix true-crime miniseries, Joe Exotic's convictions for trying to hire a hitman to take out Carole Baskin will stand, but the Tenth Circuit orders resentencing.
- Man: An Osceola County, Fla. officer ignored repeated pleas that my handcuffs were too tight. I had to get surgery to repair the damage. Excessive force? No need to answer that, says the Eleventh Circuit. This happened in 2015, and the only precedent we have on too-tight handcuffs, which might not actually apply anyway, is from 2019. Qualified immunity.
- Landlords challenge the CDC's eviction moratorium on various grounds, including under the APA and Constitution. They move for a preliminary injunction, which is denied. The Eleventh Circuit affirms, not because they aren't likely to prevail on the merits but because there's no proof of "irreparable harm." Splitting with many circuits, it explains that just violating the Constitution is not an irreparable harm. As for economic harm, the court explains landlords can just go and get back rent when the moratorium is over, and the landlords didn't have enough evidence that they can't collect from their tenants later. Dissent: C'mon. The order goes way beyond the authorizing statute, and the only reason the moratorium applies to these landlords is because their tenants have sworn that they're insolvent.
- Fulton County, Ga. jail keeps female inmates with psychiatric disabilities in unsanitary isolation cells for months at a time. Cruel and unusual? District court: Could be. Give the women four hours daily out of their cells while the suit proceeds. Eleventh Circuit (over a dissent): The thing about preliminary injunctions issued under the Prison Litigation Reform Act is they expire after 90 days (so, like, two years ago). The jail's appeal of the PI is moot, and there's no need to give the women time outside of their cells while the suit proceeds.
- After socially transitioning from female to male, Florida high school student seeks permission to use the boys' bathroom. The school says he can use the girls' bathroom or a single-stall gender-neutral bathroom. Eleventh Circuit (August 2020): Which violates the Equal Protection Clause and Title IX. Eleventh Circuit (this week): When we first ruled, "an active member of this Court withheld issuance of the mandate." So, "[i]n an effort to get broader support among our colleagues, we vacate" the opinion and substitute a new one that only reaches the equal protection claim, still ruling on the student's behalf. And the dissent still dissents, claiming "[t]he logic of this decision, no different from the last opinion the majority issued, would require all schoolchildren to use sex-neutral bathrooms and locker rooms."
- And in en banc news, the Second Circuit is going to reconsider its decision holding that "the fundamental purpose of Section 230(c)(2) is to provide platforms like Vimeo [which deleted the account of a church that promoted gay conversion therapy] with the discretion to identify and remove what they consider objectionable content from their platforms without incurring liability for each decision." (We discussed the original panel decision on the podcast.)
Friends, this week the Institute for Justice finally caught our white whale. No, Slaughterhouse is still good law. What we mean is that after years of organizing, lobbying, and rending of metaphorical garments, the state of New Jersey—the last remaining state to ban the sale of home baked goods—decided to do the right thing and free the cookies. Read all about it in the Asbury Park Press. And speaking of hard-fought wins, this week Maine became the fourth state to repeal its civil forfeiture laws, leaving all forfeitures as part of Maine's existing criminal forfeiture process. From here on out, state prosecutors cannot take title to property without first obtaining a criminal conviction (with some narrow and sensible exceptions). And, just as importantly, Maine's police officers and highway patrolmen can't turn seized property worth less than $100k over to the feds to forfeit under federal law—a common practice under the DOJ's "equitable sharing" program, which lets state law enforcement circumvent state law that is more protective of property and due process rights than federal law. Click here to learn more.