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: Adam Griffin, an IJ constitutional law fellow and a newcomer to the show, joins the panel and talks 'Merica: football, religion, and guns.
- If you're about to dive into a 13-day trial, it's best to turn over to the other side the documents you'll want to introduce into evidence. Otherwise, you might be barred from introducing any of them at all and have to simply rely on your testimony. And when you've already been sanctioned and allegedly fired for misconduct, the court and jury might be skeptical as to your veracity on the stand. Or so says the D.C. Circuit.
- In response to inquiries about topless sunbathing, Ocean City, Md. officials pass a public nudity ordinance that bans female—but not male—toplessness. (Men, however, may not be "discernably turgid.") An equal protection violation? Fourth Circuit: Under binding precedent, the law is a permissible means of protecting "public sensibilities." Concurrence: Maybe time to rethink that precedent; could the law constitutionally prohibit showing ankles?
- After a 10th-grader becomes agitated and exhibits "'predictable manifestations' of his autism," a Shreveport, La. sheriff's deputy at the school tases him, leaving the student incapacitated in a pool of his own urine for 13 minutes. And the student has a plausible claim for discrimination under the Americans with Disabilities Act and the Rehabilitation Act, says the Fifth Circuit. But discovery is needed to show whether the officer actually was deliberately indifferent to the student's disability.
- Gov't: When Jackson, Miss. police in five or six patrol cars (with lights flashing) boxed in a vehicle, the driver and passenger were free to go. That was not a seizure. Fifth Circuit: Maybe it was. Maybe it wasn't. Doesn't matter. The officers had reasonable suspicion because the two men, who were parked at a convenience store, had suspiciously not exited the vehicle for 10-15 seconds and were parked as far from the store as possible such that they couldn't be seen from within the store. So there's no need to suppress evidence of the contraband found in the vehicle. Dissent: There were few other spots for them to park, and there's nothing suspicious about dawdling for a few seconds.
- Transgender prisoner, seeking sex-reassignment surgery plus female commissary items and a long hair pass, sues various Texas officials after those requests are denied. In district court, the magistrate judge asks for—and Texas state attorneys provide—the names of the proper defendants, and the plaintiff adds them to the case. Texas state attorneys: Ah, but you didn't sue the right officials. Fifth Circuit: That's so. Also, sorry, but there's no judicial estoppel when it comes to subject matter jurisdiction. Concurrence: Hey district court, seems like there's good cause to amend the complaint. Also, this pro se plaintiff could use some help.
- Complaint (2013): Conditions in East Mississippi Correctional Facility are "barbaric." Rapes, stabbings, beatings are common. Cells and showers are filthy and vermin-infested. Medical staff ignore conditions like gangrenous wounds. Juveniles are housed with adults. And on and on. Fifth Circuit: Lots has happened since then, including prison officials going to federal prison, and there's no reason to disturb the district court's ruling that by 2018 conditions in the prison were constitutional and that an injunction is unnecessary.
- In 1992, the Supreme Court said a 24-hour waiting period for an abortion is OK. Tennessee (2015): We'll see that 24 and raise you the same. Sixth Circuit (sitting en banc): The law has a rational basis and "is not a substantial obstacle to abortion in a large fraction of cases." Dissent: The caselaw in this area is super messed up, but anyway that's not how the math works.
- Starting this fall, all students at Indiana University must be vaccinated against Covid-19, unless they meet a religious or medical exemption, in which case they must wear masks and be routinely tested. Seventh Circuit: Which is fine.
- Indiana medical providers must inform the state when one of twenty-five complications arising from an abortion occur. Seventh Circuit: The law doesn't provide guidance as to what temporal or causal relationship is required between the abortion and the complication, which presents some serious void-for-vagueness concerns. But not enough concerns for us to declare it facially unconstitutional, given that the state agency hasn't issued guidance on it, the state courts haven't interpreted it, and the core of the statute is clear. Dissent: The law is incomprehensible; our duty is to strike it down.
- It's Brennan/Easterbrook vs. Wood as the Seventh Circuit goes on a deep dive into the sufficiency of the evidence in a gang shooting of an ATF agent in Chicago's Back of the Yards neighborhood.
- Following a remand from the Supreme Court, the Ninth Circuit holds that Alaska's $500 contribution limit to state political candidates and groups is unconstitutionally low. Also out is the state's $3k aggregate limit on what a candidate may accept from out-of-state contributors. Dissent: The $500 limit is not too low, and the $3k limit is no different from the prohibition on foreign contributions upheld in Bluman v. FEC, written by then-Judge Kavanaugh. (Ed.: Kavanaugh was wrong.)
- Man who had been behaving suspiciously at a laundromat flees from Anaheim, Calif. police officers after they tase and choke him. They catch him and tase and choke him some more. He dies. Jury: Which was excessive force. Pay $13.2 mil to his family, including $3.6 mil for loss of life. Officers: California law doesn't allow damages for loss of life. Ninth Circuit (over a dissent): Section 1983 does. It's a statute designed to deter and remedy constitutional violations, including the unconstitutional loss of life.
- In which the Ninth Circuit has a question for the Montana Supreme Court: "Under Montana law, do law-enforcement officers act within the course and scope of their employment when they use their authority as on-duty officers to sexually assault members of the public?" Because if not, a woman who alleges a Bureau of Indian Affairs officer raped her and got her pregnant doesn't have a claim under the Federal Tort Claims Act.
- In which the Tenth Circuit concludes that a group objecting to campaign finance disclosure lacks standing to challenge the law—which had previously been enforced against them—because they're just too damn brave to have their speech chilled in the future.
- Allegation: Parolee is sent back to jail after he declines to attend bible study, morning prayer, and daily chapel as required by Fort Collins, Colo. halfway house. District court: Qualified immunity. Tenth Circuit: Reversed. He can sue his parole officer and (over a dissent) the director of the halfway house, who is a state actor for purposes of Section 1983.
- And in en banc news, the Seventh Circuit will not reconsider its ruling that there's no point in reviewing a Mexican cartel enforcer's challenge to his 45-year sentence on firearms offenses because the sentence is stacked on top of seven life sentences for kidnapping. Judge Wood, joined by two others, would grant rehearing.
Ever driven with a license plate holder covering up part of the innocuous motto at the bottom, like "Empire State" or "Land of Lincoln"? If you did and passed through New Jersey you'd be subject to a ticket and pretextual traffic stop. After this happened hundreds of thousands of times, the state supreme court ruled this week that it's not actually a violation unless the motto's fully covered. But what about evidence obtained because the police got that law wrong? The U.S. Supreme Court has said that's hunky-dory under the Fourth Amendment. But the New Jersey Constitution provides more protection, as Anthony Sanders, the director of IJ's Center for Judicial Engagement, explains over on our regular feature, the State Con Law Case of the Week.