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.
Friends, the Supreme Court has long held that claims for damages against state and local judges are a hard no go under Section 1983 because absolute judicial immunity was well-settled and uniformly followed at common law in 1871 (when Section 1983 was passed). Buuuuuuut . . . that's not really true. And more importantly, who cares what the common law said if Section 1983 was meant to create a new remedy after common law causes of action proved wholly inadequate in the face of KKK terror? That's on the most recent episode of the Bound By Oath podcast. Click here for more.
- Raped as a child and threatened with death by her brother's gang, woman flees to the U.S. and establishes a life before being apprehended by immigration officers. She's imprisoned for 10 months after failing to show that she is not a threat or flight risk. But wait! On appeal, a federal court says that that it is the gov't's burden to show she's dangerous or a flight risk. And on remand, she's granted bond—on the exact same evidence. First Circuit: Crazy how important the burden of proof is huh? Anyways, the Fifth Amendment requires the burden of proof to be on the gov't. Dissent: Ever heard of judicial restraint? This is a statutory case that the immigrant should win, but not on constitutional grounds.
- Judge Selya does not hold back with this week's First Circuit Vocab Quiz: behoof, immurement, indicium, limned, pavane, hyperlipidemia, calumnizing, exigible, pellucid. Along the way, the court denies compassionate release to a 62-year-old man who has served about 30 years of a 660-year sentence for laundering $136 mil of Colombian drug cartel money.
- Syracuse, N.Y. police did not "search" a defendant when they forced him to put his hands on the back of a car and stand spreadeagle, says the Second Circuit (sitting en banc, over several dissents), because a search doesn't occur until an officer "physically intrud[es]" on a defendant's protected space. Also, the officers weren't unreasonable in frisking the defendant because he looked at officers' unmarked car for "a few seconds," hitched up his pants as he got into a car, squirmed as if concealing something after being pulled over, and then stood with his pelvis close to the car after being ordered to spreadeagle. Plus, it was a high-crime area.
- After plaintiff leased the site of the former gun range and store with plans to get it up and running again, Robinson Township, Penn. officials changed the zoning to outlaw certain aspects of his business model (while permitting them elsewhere in town). Third Circuit: Which might violate the Second Amendment. Case un-dismissed, for the second time.
- After the Biden Administration rescinded the third-country asylum rule (sending third-country nationals to Mexico or Canada while they make their asylum claims), Texas sued, arguing the recission violated the APA; the administration did not consider the harms that would come to Texas, like having to process more driver's license applications. (Sound familiar?) District Court: Indeed, the APA was likely violated so the program must be restarted nationwide. Feds: Stay pending appeal? Fifth Circuit: Nope. But we will expedite oral argument to consider the merits.
- Fifth Circuit (en banc, over dissents): The district court erred in characterizing Texas' ban on a particular method of dilation and evacuation abortions as a total ban on dilation and evacuation abortions—and also by permanently enjoining the ban. In fact, the law leaves safe alternatives available. Reversed and rendered.
- Anonymous caller reports shouting and breaking glass in an apartment, but when Southfield, Mich. police arrive, all is quiet. A female resident opens the door a crack and tells them nothing is wrong. They force their way in, and tackle and arrest a male resident. Sixth Circuit: It's clearly established that an anonymous phone call, without more, is not enough of an exigent circumstance to justify a warrantless entry.
- Woman calls 911 seeking medical help for her husband, who's having a diabetic emergency. Milford, Ill.'s only full-time police officer beats the paramedics there, forces the husband onto his stomach, wrenches his arm behind his back, and uses pressure points behind the husband's ear to force submission. The man asphyxiates on his own vomit. Seventh Circuit: No qualified immunity.
- When you're arrested by the City of Chicago, the jail confiscates your property. If you don't claim it within 30 days, the city sells it and keeps the proceeds. Which, the Seventh Circuit holds, stinks for you but does not violate the Constitution.
- Thanks to agreement with FedEx, Kansas City, Mo. detective and his K-9 are at sorting center interdicting when the detective sees a box with its seams glued shut, which, according to the detective, "100% of the time" indicates a package contains illegal drugs. (And indeed the box contains about 25 pounds of marijuana.) Defendant: Which violates the Fourth Amendment. Eighth Circuit: Nope. (Though the sweep of the defendant's apartment did.)
- Allegation: Hennepin County, Minn. paramedics injected an unresisting woman with ketamine as part of a research study without her consent (and lied in their reports, saying she was combative). The drug, which was known to have high risks of serious complications, causes her to go into acute respiratory distress. Can she sue the paramedics, the county, or the doctors conducting the study? Eighth Circuit: No.
- Can the EPA moot a case by unilaterally withdrawing the order being challenged after a dozen years of litigation? The Ninth Circuit says of course not. (But rest easy, federal regulators: The panel also holds that the property owners, whose dozen years of litigation already include a unanimous win at the Supreme Court, are still hosed on the merits.)
- Last year, the Supreme Court ruled that there is no possible remedy in an American court for a fatal cross-border shooting, no matter how unreasonable, of a Mexican teen by a U.S. border agent. What about when an agent fatally shoots someone climbing the border fence (entirely on U.S. soil)? Ninth Circuit: "This case illustrates the law's inability to remedy certain wrongs."
- Herring Networks, owner of the pro-Trump network OAN, sues MSNBC host Rachel Maddow for defamation for calling their news coverage "paid Russian propaganda," just because one of their on-air hosts is paid by the Russian government to write articles for the state-owned Sputnik News, which the U.S. intelligence community has concluded published propaganda intended to influence the 2016 election. Ninth Circuit: SLAPPed!
- Another week, another "Ag-gag" law. This time, the Tenth Circuit strikes down a Kansas law that prohibits animal rights groups from using "deception" in order to get undercover agents hired as employees at agricultural facilities. Dissent: Lying to facilitate trespassing isn't protected by the First Amendment.
- Allegation: DEA agents conspired with an obviously unreliable informant to raid a legit Colorado medical marijuana farm, arrest man on charges that are soon dropped. Tenth Circuit: Illegal arrest and malicious prosecution are not claims that can be brought against federal officers. And even if they were, these officers would be entitled to qualified immunity (as they are for the plaintiffs' search-and-seizure claims).
- Allegation: Lakewood, Colo. officers call man (that they suspect of shooting a gun at an escort earlier in the evening) and order him to exit his apartment. He does, clearly unarmed. The officers then inexplicably hide and fail to identify themselves. (This repeats several times.) They order him out again, but this time it's evident to the officers that he no longer believes they are officers, and he comes out gun in hand. An officer shoots him without warning. Tenth Circuit (over a dissent): No qualified immunity.
- Hearing-impaired man and lawyer sue two Florida gas stations, arguing that the failure to include closed-captioning on gas-pump TV screens violates the Americans with Disabilities Act. Uh oh! District court notices some "red flag[s]," does a little digging, and discovers they've filed scores of these cases, settle them for money with no changes to the captioning, and split the fees. Eleventh Circuit: The district court's sanctions against them were reasonable.
- The Eleventh Circuit, sitting en banc, overrules its precedent requiring the suppression of illegally obtained evidence unless there's a "reasonable probability" it would have been discovered anyway by lawful means. Instead, the gov't must now show by a "preponderance of the evidence" the evidence would have been discovered. The upshot: a postal worker caught smuggling cocaine will get another chance to argue the evidence should be suppressed.
- Federal law makes it a crime for an alien who has been deported to be present in the United States. Man charged with this crime moves to dismiss indictment, arguing that the law was enacted in 1929 (and reenacted in 1952) "with a discriminatory purpose and … has a disparate impact on Latinx persons." D. Nevada: The government had to show the law would have been enacted without discriminatory intent, which it failed to do. Indictment dismissed.
- And in en banc news, the Ninth Circuit will not reconsider its decision to deny habeas relief in a case in which they really, really wanted to grant habeas relief. Judge VanDyke dissents from denial, and wants everyone to know how fed up he is with the Ninth Circuit's lax habeas practices.
- And in more en banc news, the Fifth Circuit will not consider this stunningly insightful amicus brief requesting en banc review of a grant of qualified immunity to officers who left a suicidal detainee in a cell with a 30-inch phone cord and then stood by idly as he strangled himself to death. Per the panel, neither common sense nor a prior case (involving an inmate who strangled himself to death with a sheet) put the officers on notice such a thing might be unconstitutional.
Last November, the DEA seized nearly $30k from IJ client Kermit Warren, who was flying with the cash because he'd intended to buy a tow truck for his scrapping business. It is perfectly legal to fly domestically with any amount of cash, and even though the feds found no evidence connecting Kermit or the money to criminal wrongdoing, in April the gov't filed a complaint to permanently forfeit the money. This week, Kermit—a hardworking grandfather, lifelong resident of New Orleans, and head deacon at a historic Baptist church—teamed up with IJ to get the money back and to put a stop to the DEA's policy of seizing money and forcing people to prove their innocence to get it back. Click here to learn more.