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.
Hamdi Mohamud, then a teenager, spent about two years in prison after a federal officer outright fabricated a criminal case against her. But the Eighth Circuit dismissed her lawsuit against the officer because, it held, there is no constitutional remedy against federal officials who cause innocent people to be arrested and thrown in prison. (Nor has there been any other kind of remedy. Despite her perjury, the officer is currently a St. Paul police officer earning six figures a year.) This week, IJ asked the Supreme Court to take a look and reverse. Click here to learn more.
- A single family that owns 34 corporations that in turn own 362 Boston taxicab medallions sues Uber under various state law "unfair competition" claims. The claims relate to the period between 2013 and 2015 when whatever Uber was doing in Massachusetts was, shall we say, a "gray area." There's some dispute on what the correct standard is for "unfair competition" (with one possibility being the "rascality test"). But in any case, the First Circuit upholds the district court's ruling for Uber, whose actions were not the "extreme or egregious business conduct" the taxicab owners needed to prove. (We discussed this case on the podcast.)
- When too few non-Black/Hispanic students apply for spots in Connecticut magnet schools, the seats that are reserved for them go empty even if Black and Hispanic students would like them. Does the regulation capping the schools' Black or Hispanic population at 75 percent violate the Equal Protection Clause? The nonprofit that brought the suit doesn't have standing to find out, says the Second Circuit.
- A civilian military contractor providing air traffic control at an Afghan airport directs an airplane into the side of a mountain. All souls lost, and their families sue. The district court grants the contractor summary judgment, citing a "combatant activities" immunity. Second Circuit: No, that only applies when "[t]he Government made me do it," and it didn't here. Go to trial, and you can argue over whether the pilot shares some of the blame.
- Allegation: Chinese businesses colluded to impose price controls on Vitamin C exports, a per se violation of the Sherman Act. Trial Court: Correct, and they must pay treble damages of $147 million. Second Circuit (2016): Actually, they owe nothing. SCOTUS (2018): Reversed. Second Circuit (2021): They still owe nothing, because the price controls were required by Chinese law; international comity prevents us from imposing liability. Dissent: Nonsense! The law imposed a minimum price for exports, but the companies conspired to fix a higher price.
- Believing individuals would be less likely to report crimes if they feared deportation, New Jersey's AG adopted a policy in 2018 restricting how state law enforcement assists federal immigration officials. Ocean County: Federal law preempts the policy. Third Circuit: It is a little weird that a political subdivision is suing its own state in federal court, but they can when the Supremacy Clause and preemption are at issue. In any event, this federal law does not "preempt" the AG's policy because preemption only occurs when a law regulates private, not state, conduct.
- Allegation: If you work for FedEx, you can get paid time off for jury duty, illness, or bereavement, but reservists can't get paid time off for short-term military leave. Naval reservist sues, alleging this policy violates federal law. Third Circuit: Sounds like it. Employers must give service members the same rights and benefits that other employees on comparable leave would get.
- Conspirator in 1990 murder writes letter in 2016 to co-conspirator recanting the testimony that put away the co-conspirator. In fact, the putative co-conspirator didn't have "anything to do with" the murder. The letter writer dies shortly after. Yikes! The letter lacks a return address, and prison policy is to reject those. Did it violate due process for prison officials not to notify the putative co-conspirator about his rejected mail? It might have, says the Third Circuit. Case un-dismissed.
- Third Circuit: The Supreme Court has said that officers may not use gratuitous, non-penologically purposed force against inmates. That alone gave the officer here at least "some notice" that he could not strike a restrained, nonthreatening detainee. Plus, both our court and our sister courts have specifically said as much. So no qualified immunity for these strikes (which also got the officer criminally charged).
- Two taxpayers sue, claiming that Montgomery County, Md. violated federal law by paying COVID-19 relief benefits to undocumented persons. Fourth Circuit: There is indeed such a federal law, but nothing in the law suggests that it can be enforced by taxpayers. Dissent: Maryland law allows taxpayers to sue, and states can create rights of action for violations of federal statutes. (Also dissent: But I'd hold that these taxpayers lack Article III standing regardless.)
- North Carolina charter school's dress code says that girls—and only girls—must wear skirts, jumpers, or "skorts." No pants or shorts allowed. Fourth Circuit: The district court held that the dress code violated Equal Protection but not Title IX. We reverse on both counts. The charter school is not a state actor, so Equal Protection does not apply. But Title IX does apply here, even if it doesn't expressly mention dress codes, and we remand for the district court to analyze the case under Title IX. Dissent: In 2021, women walk in space, serve in the Supreme Court, and we even have a female Vice President. And yet girls in this public school are not allowed to wear pants. That violates Equal Protection.
- The Constitution says the States can't take private property without paying just compensation. So if a State takes your property, you can sue in federal court for that aforementioned compensation. Right? … Right? … Fourth Circuit: Nope. State sovereign immunity bars that claim.
- Texas man starts sending taunting postcards to police referencing V for Vendetta and mailing homemade bombs, one of which damages a church's administrative building. He's arrested and convicted under a statute that requires that the building damaged by fire or explosion be used in or influence interstate commerce. His lawyer argues the church's building doesn't count. Fifth Circuit: An argument that is V for Vacuous.
- Regular old medical malpractice doesn't give rise to an Eighth Amendment claim. But deliberate indifference does—which is precisely how the Fifth Circuit (over a dissent) categorizes Angie, La. prison medical staff's "cursory treatment" of an inmate complaining of increasingly extreme pain and an inability to walk. (Only after six weeks of providing ibuprofen and muscle balm did they take an X-ray and discover his hip was broken and in need of surgery.) No qualified immunity.
- Former employee of a Hurst, Tex. putt-putt golf course robs the establishment, murders the manager. He's sentenced to death after prosecutors tell the jury that the victim's family wanted the death penalty—something that wasn't true. But the Fifth Circuit won't address his claims, finding that he can't overcome the high procedural bar for habeas relief.
- Lansing, Mich. officer violates jail policy, checks box affirming she put eyes on a detainee who in fact she did not put eyes on. The detainee, who was unconscious and lying in a pool of his own vomit, dies. Sixth Circuit: Ironically, to be liable the officer would have needed to witness the detainee's distress and do nothing. Violating jail policy means she's off the hook. However, another officer, who (among other things) did see the detainee, does not get qualified immunity.
- Ohio man pleads guilty to being a felon in possession, securing a plea bargain for a guideline sentence of 51 to 63 months, from which the gov't was prohibited from suggesting any upward departure. District Court: I'm giving you 120 months. Sixth Circuit: Try again. District Court: Ok, 96 months. Sixth Circuit: The gov't breached the plea agreement the second time around, so we're sending it back down—to a new judge this time.
- Arkansas "Ag-Gag" law creates a civil cause of action to prevent people from gaining access to slaughterhouses under false pretenses. Animal-rights groups that want to send undercover employees in to document animal abuse sue, alleging a First Amendment violation. Eighth Circuit: And they have standing. They aren't sending in undercover employees because of the law. Dissent: The chain of events needed to create liability is too speculative to support standing.
- Iowa "Ag-Gag" law makes it a crime to gain access to or employment at slaughterhouses under false pretenses. Animal-rights groups sue, alleging First Amendment violations. Eighth Circuit: The access provision is constitutional, because it only proscribes lies intended to facilitate trespassing. But the employment provision is unconstitutional, because it proscribes even immaterial lies. Concurrence: I agree, but these are tricky issues. Dissent: No, they aren't. Both provisions are constitutional.
- In 1972, Congress outlawed sex discrimination in federally funded education programs. And then in 1974, it delegated to an agency the writing of regulations applying the law to college sports. Which were written in 1975. With a policy about what they meant in 1979. And a clarification of the policy in 1996. And more clarifications in 2003 and 2010. District court: All these clarifications mean plaintiffs failed to state a claim when suing about how the University of North Dakota eliminated women's ice hockey but not men's. Eighth Circuit: Reversed. Clarifications don't overrule policy, so plaintiffs might have a case. Concurrence: Courts are told to defer to regulations, interpretations of regulations, and clarifications of interpretations, but "[w]hat gets buried under these layers of deference may well be the statute itself."
- In Colorado prisons, inmates who are religious observers are exempt from beard-shaving requirements. Can a Muslim inmate who was forced to shave his beard sue a sergeant for intentionally discriminating against his religious beliefs—and doing so with anti-Muslim animus? District Court: Neither the Tenth Circuit nor the Supreme Court has addressed this exact situation before, so qualified immunity for the sergeant. Tenth Circuit: Reversed. It's obvious from general First Amendment principles that officials may not discriminate against a person's religion. And it's super obvious that they may not discriminate out of animus. (Ed.'s Note: We at IJ like to think our amicus brief had something to do with this result.)
- While intentionally discriminating against a prisoner's religiously motivated grooming preferences obviously violates the First Amendment, unintentionally discriminating against a prisoner's religiously motivated eating habits does not, says the Tenth Circuit. Qualified immunity for the chaplain who denied Jewish prisoner's kosher meal request.
- Eleventh Circuit: Stop applying Rooker-Feldman!
In 2019, a Department of Homeland Security officer stepped in front of Kevin Byrd's moving car, pointed a loaded gun at Byrd, told Byrd he'd "put a bullet through his f—king skull," and then pulled the trigger. The gun jammed. When police arrived, the agent showed them his badge, leading them to detain Byrd for several hours. When they reviewed the security footage, they let Byrd go. Why was the agent so mad at Byrd? Because he'd been asking questions about the agent's son drunkenly crashing his car at 70 mph with Byrd's ex-girlfriend in the car. But when Byrd sued the agent, the Fifth Circuit said there is no constitutional remedy against federal officials for excessive force and unlawful detention in a parking lot (as opposed to inside a home). This week, IJ asked the Supreme Court to take a look and reverse. Click here to learn more.