The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Short Circuit: A Roundup of Recent Federal Court Decisions

Overusing a park, prefering a paramour, and taking a knee.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Many of the opinions we summarize on Short Circuit reference the "Will of the People." Judges are like "who am I to find a law unconstitutional? That would overrule the Will of the People." But what exactly is this "Will" anyway? Do "the People" even know about most laws, let alone "will" them? We at the Center for Judicial Engagement are trying to answer these questions with a conference on Friday, September 10, featuring a slew of top-notch scholars. If you're in the Washington, DC area we'd love to have you come and join in! Register here. There's free Virginia CLE.

  • Did U.S. intelligence have advance knowledge of a credible threat to Saudi journalist and Washington Post columnist Jamal Khashoggi, whose murder was—to a high degree of confidence—ordered by the Saudi Crown Prince? That's not the sort of thing you can find out via a public records request, says the D.C. Circuit.
  • Allegation: Tenants tell Biddeford, Maine police officer that their landlord just threatened to murder them and shows the officer video of the landlord screaming at them. The landlord then screams at the officer that he has "nothing to lose," that he'll be "in the newspaper tomorrow," and that he'll make a "bloody mess." The officer leaves. Minutes later, the landlord shoots the tenants, killing two of them. First Circuit (over a dissent): The officer and the city might be liable.
  • Private Massachusetts high school receives three unsolicited one-page faxes from the nonprofit that administers the ACT. As one does in such situations, the school files a class action seeking $400 mil in damages under the Telephone Consumer Protection Act of 1991, which drags on for eight years. First Circuit: The case can't go forward as a class, but the school's individual claims can go forward. The nonprofit's offer to settle for the school's requested individual damages of $46.5k did not moot the case, because the school didn't accept the offer.
  • Seven months after being arrested by New York City police for alleged drug violations, man successfully has the prosecution dismissed on speedy-trial grounds. He then sues for malicious prosecution. But wait! He can't sue unless the criminal prosecution had a "favorable termination." Does dismissal on speedy-trial grounds count? Second Circuit: If the state doesn't prosecute your case, it's probably safe to assume it wasn't a very good case, which sounds like a favorable outcome to us.
  • Can a transgender woman who claims she was stabbed and raped by a fellow inmate sue federal prison officials who allegedly ignored her concerns? Third Circuit: "Her case falls comfortably within one of the few contexts in which the Supreme Court has recognized a Bivens remedy."
  • North Carolina state employee health care plan does not cover "gender-confirming" services. Transgender enrollees sue, claiming this violates the Affordable Care Act. Fourth Circuit (over a dissent): You can't usually sue a state for violating a federal law, but the high standard for waiver of the protections of the Eleventh Amendment was met here (because the plan accepts federal funds conditioned on such a waiver).
  • Prisoners must exhaust all available administrative remedies before filing a claim in federal court. Fifth Circuit: It's possible that no administrative remedy exists for a Texas prisoner concerned about future retaliation, particularly where officials have already claimed they would "gas [his] ass," slammed him to the ground, and maced him for filing grievances.
  • After refusing to either join MS-13 or pay a "war tax," Honduran man and his wife are repeatedly brutalized by the gang. The man enters the U.S. illegally and shows the authorities gruesome photos of his wounds. Immigration judge: He's likely to be tortured or killed if deported, but deport him we must. The Honduran gov't is merely unable to protect him. It doesn't consent or acquiesce to his persecution, which is what the law requires. Fifth Circuit (over a dissent): That's so. Nothing stopping the feds from using their discretion to let him stay, though.
  • College student gets restraining order against ex-boyfriend who'd broken her nose, pointed a gun at her head. Informed that he's continuing to stalk her, Ottawa County, Mich. police do little (allegedly upon the request of his father, a fellow officer), for instance, mailing him an arrest warrant rather just arresting him. He kills the student and himself. Sixth Circuit: Her family has no claim against the gov't.
  • Allegation: A woman is arrested for drunk driving in Tennessee. She's combative, and an officer tries to force her inside his vehicle, pushing on her knee. Which pops. She ends up with a broken shinbone and a torn ACL. In jail, she's unsteady and yelling about her knee. But a nurse glances at it for a minute and doesn't see swelling. Can the injured detainee sue the guard who refused to give her any medical treatment? A majority of the Sixth Circuit says the case goes forward. (The dissent would apply qualified immunity.)
  • Woman takes photos, records video of schoolchildren at Bloomington, Minn. park—the better to share her concern with the community that the Islamic charter school next to the park is overusing and otherwise not keeping to its agreement with the city re: park usage. Eighth Circuit: The First Amendment protects everyone, and the city's ordinance banning photography and videorecording in public parks is unconstitutional.
  • Is it sex discrimination when an employer favors one employee over another because of a workplace romance? Joining every circuit to consider the question, the Ninth Circuit says no, Title VII liability does not cover paramour preference.
  • Two cannabis activists ask the DEA, with a one-page handwritten petition, to reschedule the drug and make it less illegal. The DEA declines. A different group of people go to court challenging the denial. Ninth Circuit: The group before us has standing, but this lawsuit can't go forward because they raised different arguments from the original petition (and thus have failed to exhaust their administrative remedies). Concurrence: In the appropriate future case, the DEA's current classification of marijuana should go up in smoke.
  • Fans of the Seattle Mariners who use wheelchairs sue T-Mobile Park for having inadequate sightlines, in violation of the Americans with Disabilities Act. The Ninth Circuit remands for consideration of DOJ's 1996 Accessible Stadiums document. Left unanswered is how being unable to see the Mariners play constitutes an injury in fact.
  • After years of trying different kinds of medications (some make his tongue swell so much he can't talk, others make him grow breasts), man and his doctors at last find a combination that eases the symptoms of his mental illness without such severe side effects. Ninth Circuit: Nevada prison officials probably violated the Eighth Amendment when they ceased providing him those medications.
  • Pursuant to "bulky items" policy, Los Angeles officials summarily destroy homeless people's property like a dog crate, wooden pallets and a cushion for sleeping, carts used for moving one's possessions, and bins that a person used to keep their clothes dry. Ninth Circuit (over a dissent): Which probably violates the Fourth Amendment. The city must stop destroying people's stuff while the suit proceeds.
  • Oklahoma City cop moonlighting as security guard shines flashlight into parked car, startling man who'd apparently been sleeping in driver's seat with a gun in his lap or in his waistband. The man reaches for the pistol, and the officer shoots him nine times, killing him. Tenth Circuit: No constitutional violation here. Qualified immunity.
  • Allegation: 15-year-old is taken from California against her will to Logan, Utah residential treatment facility, where she's repeatedly sexually abused. She files a timely suit in California. But the facility transfers the case to Utah, where it's beyond that state's statute of limitations and thus dismissed. Tenth Circuit: Just so. Deciding which state's substantive law applies to a dispute with more than one state connection is complex—there are at least seven approaches in use among the 50 states—but we're going with Utah here. Dissent: Ought to go with California.
  • The city of Fort Lauderdale, Fla. prevents a local nonprofit from distributing food to the homeless in a public park, which the group challenges as a violation of the First Amendment. Eleventh Circuit: And they're right. Concurrence (by two judges): But don't get any ideas. This case had a well-developed record showing that the nonprofit uses these events to spread its particular political message.
  • From this day forward, it's unconstitutional for police to shoot 20 times at a driver coasting by them unthreateningly, says the Eleventh Circuit. However, since no case has previously said as much, the officers here are entitled to qualified immunity.
  • Georgia voters who vote via absentee ballot can either mail it in or drop it off. Plaintiffs: The stamp voters must provide to mail in an absentee ballot is a poll tax in violation of the 24th Amendment. Eleventh Circuit: It is not, and your claims "border on the frivolous."
  • After Kennesaw State University cheerleaders kneel during national anthem at football game, Georgia state legislator (who chairs committee controlling public university budgets) and county sheriff tell the university's president to make them stop. The university responds by keeping the cheerleaders in a tunnel while the anthem is played for several games. Eleventh Circuit (in a ruling with two majority opinions): A cheerleader's claims against the sheriff can't go forward.

Earlier this year, the DEA and the Nevada Highway Patrol took nearly $87k in cash from Stephen Lara, a Marine veteran pulled over for following a truck too closely. He had committed no crime and wasn't arrested. And when the deadline for officials to either return the money or sue to keep it came and went, officials just . . . kept the cash. However, within minutes of The Washington Post publishing a story about the seizure and the launch of an IJ suit seeking a return of the money, the DEA announced it was returning the money this week. The suit is not over, however, as Stephen is also challenging the Nevada Highway Patrol's power to participate in the federal "equitable sharing" program, which lets state agencies do an end-run around state law and process forfeitures under federal law. Click here to learn more.