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.
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- In 2017, Turkish President Recep Tayyip Erdogan visited Washington, D.C., where he was greeted by anti-Erdogan protestors, whom Turkish security officials beat the snot out of. D.C. Circuit: Neither foreign sovereign immunity, nor the political question doctrine, nor international comity is a valid defense to the said forcible snot extraction.
- Wife of exiled Russian businessman sues playwright and director over Kleptocracy, a play in which she is portrayed, by name, as a prostitute and murderer. D.C. Circuit: The play also depicts Vladimir Putin reciting poetry to a stuffed Siberian tiger. It's too fantastical for anyone to reasonably believe it portrays actual historical facts.
- Plaintiffs: We can only get firearm permits in Connecticut if a government official takes our fingerprints for a background check, so it violated our Second Amendment rights when Connecticut agencies stopped taking fingerprints as part of the state's COVID-19 emergency response. Second Circuit: They stopped, but then they started again, so everything's moot.
- Second Circuit criminal-defense pro tip #1: If your client, shoeless and disheveled, repeatedly bites a Border Patrol agent while purporting to arrest him (with his own handcuffs) for his participation in a "great cabal to eat babies," effective assistance of counsel might—might—require you to introduce expert evidence in support of an insanity defense.
- Second Circuit criminal-defense pro tip #2: If your client is going to confess to being a "sleeper" agent of an international terrorist organization pursuant to a promise of immunity from prosecution, make sure the government has, y'know, promised to give him immunity.
- Second Circuit: Plaintiffs who entered into a contract with a "multi-level marketing" company may have agreed to arbitrate their disputes with the company, but that does not mean they must arbitrate their dispute with former President Donald Trump, who allegedly fraudulently induced them to sign the contracts.
- If you had claim preclusion, Indian lands, and the subtle legal difference between "electronic bingo" and "slot machine" on your card, then this Second Circuit opinion is a bingo.
- District court: The Second Amendment may protect an individual right to keep and bear arms, but that right really just protects against blanket bans on anyone owning firearms, not against the government forbidding you, personally, from doing so. Second Circuit: We're pretty sure individual rights are about individuals.
- OK, but does the Second Amendment protect undocumented immigrants and bar a federal law that prohibits them from possessing a gun? Second Circuit: We won't categorically decide that today, but the law constitutionally applies to the defendant in this case, who illegally entered and stayed in the U.S., never filed federal tax returns, and was never employed on the books. Concurrence: The court should just say "that illegal aliens lack protection under the Second Amendment."
- Allegheny County, Pa. jailor is fired after he complains that a colleague called his biracial grand-niece a "monkey" and sent a series of racially offensive text messages about their coworkers. District court: A white jailor cannot maintain a retaliation claim under Title VII. Third Circuit: Not so. Harassing someone who associates with a person of another race may well create a hostile work environment, and Title VII protects all employees from retaliation for filing a complaint.
- Third Circuit: Stop applying Rooker-Feldman!
- In narrow circumstances, a federal prisoner can file a petition for habeas corpus if he is procedurally barred from filing another collateral attack on his sentence. But those circumstances, says the Fourth Circuit, don't reach far enough to help this former corrections officer who was convicted in connection with the brutal death of an inmate.
- Government agents' seizure of attorney-client privileged materials is a big deal, the Fifth Circuit reminds us, ordering a district court to reinstate a healthcare company's motion for return of its property.
- In this Fifth Circuit case, we once again observe the time-honored saying that a man who represents himself has a convicted felon for a client. (Is that the saying? We didn't have time to look it up.)
- In which the Sixth Circuit takes judicial notice of the fact that it does not have a time machine, which means plaintiffs' requests for injunctions granting them greater access to the ballot in 2020 are moot.
- Invoking the Public Health Service Act of 1944, the CDC imposes—and subsequently extends—a nationwide eviction moratorium. Owners of rental property sue, alleging the moratorium exceeds the CDC's power. Sixth Circuit: And they're right. The law gives the Surgeon General power to "provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary." The eviction moratorium goes too far. Concurrence: This is a textbook example of why we have separation of powers.
- Asthmatic prisoner seeks compassionate release because of the risk of COVID-19. Seventh Circuit: Sorry, but the law requires prisoners to show "extraordinary and compelling" reasons for immediate release. Now that there's an effective vaccine, that option is off the table.
- Court: Are you sure you don't want your lawyers to make a closing argument in the penalty phase of your quadruple murder trial?
Court: Really, really sure? Like, 100% sure?
Defendant: Absolutely, unequivocally sure.
Court: This is a death penalty case, you know.
Defendant: Only Allah can decide whether I live or die.
Jury: About that…
Eighth Circuit: The defendant's ineffective-assistance claim fails.
- The Beef Promotion and Research Act of 1985 imposes a $1 per head fee on cattle sales. The money goes to "state beef councils," which use the money on ad campaigns to "strengthen the beef industry's position in the marketplace." And there's a similar program for pistachios, which directs the money to the California Pistachio Commission to promote pistachio sales. Ninth Circuit: Since the pistachio promotion was government speech, the beef promotion is too. The ranchers challenging the fee can't bring a claim about being compelled to subsidize speech they dislike. [Your editors think this is a good place to mention the concept of public choice theory.]
- California bans pork not produced according to certain animal-welfare requirements. Pork producers: But, practically speaking, everyone is going to have to follow California's standards. That's a dormant Commerce Clause violation. Ninth Circuit: We didn't buy that theory for foie gras, and we're not buying it now. Case dismissed.
- Does a California order mandating remote school violate the fundamental right to attend public school? Private school? Ninth Circuit: No. Yes. Dissent: The state has resumed in-person instruction. The case is moot, and the majority overreads the Supreme Court's private school decisions.
- When police arrest someone driving a car, they may impound the car for public safety. Impounding demands inventory searches. Surely police wouldn't impound a car as a pretext to search for evidence of a crime, right? Indeed they do, shows the Tenth Circuit, which reverses the convictions based on this evidence. Dissent: Police need only act reasonably in deciding to impound a car; they need not exhaust all other options, as the majority suggests.
- Colorado website designer refuses to create websites celebrating same-sex marriage, which she believes conflict with God's will. This runs afoul of state anti-discrimination law. Does the law run afoul of the First Amendment? Tenth Circuit: No. The law survives strict scrutiny under the Free Speech Clause and, as a neutral law of general applicability, it survives the Free Exercise Clause. Dissent: "[T]his case represents another chapter in the growing disconnect between the Constitution's endorsement of pluralism of belief on the one hand and antidiscrimination laws' restrictions of religious-based speech in the marketplace on the other."
- El Paso County, Colo. patrol sergeant vocally supports his boss's opponent in upcoming sheriff election. He also shares with a local newspaper alleged misconduct in the sheriff's office. Two days after the newspaper publishes its story, the sheriff fires the sergeant, who responds with a First Amendment lawsuit. Sheriff: Qualified immunity. Tenth Circuit: No. Every reasonable official in the sheriff's position would've understood that they couldn't fire someone for reporting misconduct to the newspaper.
- Royal Caribbean Cruises offers no refunds for passenger cancelation within 14 days of a voyage, which means that passengers on a "cruise to nowhere" were forced to travel to Texas while a Category 4 hurricane was barreling down on the state. On the day of the cruise, Royal Caribbean canceled, leaving passengers stuck in hurricane conditions. Passengers sue. Eleventh Circuit: Remanded because of some jurisdiction thing. [Ed.: We only summarized this case as an excuse to link to this famous Harper's article by David Foster Wallace.]