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, qualified immunity is no picnic. But in a series of recent decisions federal courts have upped the ante, bestowing a de facto absolute immunity on federal officers who (1) put an innocent teenager in prison for about two years on completely made-up evidence, (2) tried to shoot a man in the face in a fit of pique, (3) beat up an unresisting Vietnam vet for no discernible reason, and (4) beat up unresisting people who were protesting police brutality. That's all on the latest episode of the Bound By Oath podcast. New to the podcast? Start with Episode 1.
- A warrantless drug-doggie sniff outside your home might be a Fourth Amendment violation. So, too, might a sniff outside your apartment. But outside your commercial storage unit? Decidedly not, says the Second Circuit.
- In a rare "mini en banc" opinion, a three-judge panel of the Second Circuit clarifies/overrules some old circuit precedent on entrapment after giving a heads-up to the other circuit judges. All of which means a new trial for this Dominican immigrant who was busted after selling fentanyl to his barber, who was secretly a confidential informant for the DEA in exchange for cash and deportation deferrals.
- Man is convicted of a drug crime, and the feds move to deport him under a statute that allows the removal of "aliens" convicted of such crimes. But wait! He was a naturalized citizen at the time of his conviction, making him not an "alien" under the statute. Feds: No matter, we also stripped him of his citizenship because he lied on his immigration papers. Third Circuit: Nope, removal of citizenship is not retroactive. He was a citizen at the time of the crime, so he cannot be deported under the chosen statute. Concurrence: Maybe under another one, though.
- Cameroonian man—a speaker of "Pidgin English"—enters the Escherian world of immigrant-removal proceedings. Despite many clues that the man is not fluent in Standard English, the immigration judge proceeds with several removal hearings and denies the man's asylum application. Third Circuit: The Due Process Clause (yes, yes, of the Fifth Amendment, not the Fourteenth) entitles the man to an opportunity to make arguments and present evidence on his own behalf. And the immigration judge's failure to inquire into his need for an interpreter violated that right. He gets a new hearing.
- Highly paid, salaried employees with executive, administrative, or professional duties are generally excepted from federal law requiring employers to pay time and a half for overtime hours. So an oil-and-gas company need not pay overtime to a supervisor earning over $200k/yr, right? Fifth Circuit (sitting en banc, over a pair of dissents): Nope, pay the man. He's paid a daily rate that doesn't meet the relevant definition of a salary.
- In 2016, the en banc Fifth Circuit struck down Texas's voter ID law. Are the plaintiffs in that case "prevailing parties" entitled to attorneys' fees? Fifth Circuit (opinion by Judge Ho): I mean, obviously. Concurrence (also by Judge Ho): But let me reiterate why they should have lost.
- The 12th Man tradition at Texas A&M stems from an incident in 1922 when, facing a stronger team and with a bench thinned by injuries, the Aggies' coach called former player E. King Gill down from the stands to suit up and stand ready to substitute in. The Aggies won, and though Gill was never called in, his readiness to serve his fellow Aggies stands as an inspirational example to this day. Fifth Circuit: In a less inspirational example, Texas A&M, which straight-up stole a biography of Gill from its copyright owner, is entitled to sovereign immunity.
- Allegation: Texas prison guards beat up inmate who asked them to lower "scalding hot" shower temperature. There's no video or witnesses, just the inmate's word (plus medical records of his injuries) against the guards. District court: Which isn't enough to get the case in front of jury. Fifth Circuit: Reversed. And since it's clearly established guards can't use gratuitous force on inmates, no qualified immunity.
- Article III standing helps ensure that federal courts don't issue advisory opinions, observes the Sixth Circuit, before devoting seven pages to dicta about the associational-standing doctrine. Concurrence: Those seven pages are unnecessary to resolving the controversy before us—whether the Association of American Physicians & Surgeons has standing to sue the FDA over its early-COVID regulation of the federal gov't's stockpile of hydroxychloroquine. (It doesn't.)
- The Sixth Circuit takes a philosophical dive into the nature of severance: Is it a remedy to fix unconstitutional statutes? Or, because unconstitutional enactments are void ab initio, is it simply a recognition of what the law has always been? Three judges say the latter, which means that an energy company that made prohibited robocalls is still on the hook, even though it made those calls during a five-year period when the federal robocall statute contained an exemption the Supreme Court later held unconstitutional.
- Was a motorist actively resisting a Kenosha, Wisc. officer when the officer tased him? You be the judge! (Skip to about :30 seconds in.) Seventh Circuit: Also, a jury should judge. No qualified immunity.
- Among myriad abortion requirements, Indiana prohibits non-doctors from performing medication abortions, requires second-trimester abortions to be performed in a hospital or surgical center, and bans telemedicine in abortion care. District court: Improvements in medicine and technology place these laws outside the existing precedents okaying them. Seventh Circuit: It's not for the district court to modify higher-court precedent. Indiana officials may continue to enforce these laws while this case proceeds. Dissent: The Supreme Court hasn't overruled Roe v. Wade yet.
- Police visit home of Hot Springs, Ark. homeschooling family after 16-year-old accuses his parents of neglect, abuse. The parents' seven minor children are removed from the home for several months, and it takes 21 months to resolve the charges against the parents. Who sue. Eighth Circuit (2018): Taking the parents' allegations as true, their lawsuit against at least one of the child-abuse investigators can proceed. District court (2020): On the summary-judgment record, all the remaining defendants are entitled to qualified immunity. Eighth Circuit (2021): Affirmed.
- Have you been lying awake at night wondering why Congress included § 1158(a)(2)(D) of the Immigration and Nationality Act as a subsection of § 1158(a)(2) instead of as a free-standing section? The Ninth Circuit has you covered.
- While appealing his conviction, California man is required to complete a sex-offender treatment program as a condition of supervised release. Uh oh! Part of the treatment program is admitting his offense! He refuses to do so, is kicked out of the program, and is incarcerated. He sues, alleging a violation of his Fifth Amendment right against self-incrimination. Ninth Circuit: The Fifth Amendment protects against the use of self-incriminating testimony in criminal proceedings. That hasn't happened yet, so there's no violation. Dissent: Dude's in jail because he wouldn't admit to a crime. Sounds like a Fifth Amendment problem to me.
- Now-paroled Colorado inmate suffering from extreme case of ulcerative colitis (that forces him to use the bathroom nearly 30 times per day) missed hundreds of meals per year rather than risk soiling himself at the dining hall. Inmate: If officials had renewed my "movement pass" to let me skip the chow line, I could have eaten and gotten back to my cell (and bathroom) in time. Instead, they just offered adult diapers—that is, a choice between skipping meals or eating while sitting in my own feces. Tenth Circuit: A reasonable jury could find a violation of the Americans with Disabilities Act. But not the Eighth Amendment.
- Teen takes car without permission, crashes after high-speed police chase. When a Columbus, Ga. officer (who's on foot) sees the car's reverse lights turn on, he begins to fire 11 rounds into the car, continuing as it slowly reverses past him. The car comes to a stop, and, as a passenger begs the officer for help, he walks directly in front of the car, reloads, and fires another 10 rounds. (The driver is killed. Two passengers, also teens, survive; one is shot in the face and the other in the shoulder and arm.) District court: The officer is entitled to qualified immunity for the first barrage, but not the second. Eleventh Circuit: QI for both. Dissent: QI for neither.
- After a Little Rock, Ark. officer shoots and kills a motorist, the police chief fires him for violating department policy requiring officers not to place themselves in the path of an oncoming vehicle. State trial court: Let's make that a 30-day suspension. State appeals court: Take another look. The question isn't whether the officer behaved reasonably, it's whether he violated the policy. (We had occasion to discuss Little Rock officers' tendency to shoot motorists on a recent episode of Bound By Oath.)
In May 2019, Harris County, Tex. officers took over $42k in cash that couple Ameal Woods and Jordan Davis had scrimped and saved for years, and which Ameal was traveling with to buy a used tractor-trailer for their business. He wasn't arrested, charged with a crime, or even given as much as a warning. Later, officials filed a forfeiture action with boilerplate, copy-pasted language written by an officer who was not at the scene (a review of hundreds of cases over the past five years reveals that this is a common practice). But now Ameal and Jordan are taking the fight to Harris County. Represented by the Institute for Justice, they have filed a class action under the Texas Constitution challenging the county's system of policing for profit. Click here to learn more.