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.
After a fatal police shooting in Maine in 2017, Joshua Gray criticized the officers' conduct on social media. Which officials did not like, and so when Joshua applied for a license to expand his private investigator business into the state, they turned him down, citing his lack of "good moral character." A First Amendment violation? Maine's highest court didn't think so. So now Joshua and IJ are asking the U.S. Supreme Court to hear his case and decide whether the gov't can silence its critics by denying them the right to work in the occupation of their choice. Click here to read the cert petition.
- If you're in a national park in Maine and you drive a car into a tree at high speed with three passengers (who all die as a result) in the middle of the night, and the police have limited personnel, have to deal with the bodies and your own injuries, have no equipment on hand to draft an affidavit, and their attorney doesn't at first call them back, are these exigent circumstances that justify a warrantless blood draw to see if you had too much hooch? District Court: No. First Circuit: Yes. Dubitante opinion: I would have remanded for fact-finding on BAC dissipation.
- Nonprofit groups challenge Rhode Island disclosure laws for political advertising, including a requirement that ads list the names of the group's five largest donors, alleging a variety of First Amendment theories. First Circuit: Whatever rules might apply to other areas of speech, the Supreme Court has been pretty clear that campaign finance disclosure is constitutional. And now for this week's Judge Selya Vocab Quiz: velivolant, ipse dixit, pellucid, remonstrance, pretermit.
- Allegation: Rikers Island inmate develops large, painful gum abscess that interferes with talking, eating, and sleeping. Officials ignore numerous increasingly urgent requests for appropriate treatment. Indeed, he needs surgery, but he's offered only a teeth cleaning and a tooth pulling. Second Circuit (over a dissent): Which would not violate the Eighth Amendment. Case dismissed.
- Ashley Borough, Penn. police officer gives women a choice between getting arrested or giving him oral sex. He gets 15-year sentence after pleading guilty to violating their civil rights under color of law. Third Circuit: Which isn't a sex offense, so the district court can't order him to register as a sex offender.
- Is the National Security Agency unconstitutionally spying on Wikimedia's internet communications? Fourth Circuit: It's a secret. Case dismissed.
- Man takes Shreveport, La. officers on low-speed chase. He briefly exits his pickup, rifles around in the back, and tries to re-enter (allegedly visibly empty-handed). An officer (allegedly without warning) shoots him four times. He survives. Fifth Circuit (laudably including a link to the video): We can only review the law, not the facts, and there are too many factual disputes. No qualified immunity for now. (Also, no Heck bar.)
- Can the feds prioritize which illegal immigrants to investigate and deport—say, those who commit certain kinds of crimes over those who are more law abiding? Louisiana officials, Texas officials, and a district court judge: Absolutely not! Congress must authorize any prioritizing. Fifth Circuit: Well, actually, the "who to charge" decision is generally shielded from judicial review and committed to the gov't's discretion, so we will stay at least that part of the district court's nationwide injunction. Also, it seems a little strange that the nationwide injunction applies in the Ninth and Eleventh Circuits even though courts in those circuits rejected similar challenges—but we'll leave it at that.
- Would-be busker wants to perform in Houston, but it's illegal for him to do so in his preferred areas. District court: He hasn't been arrested, cited, or threatened with either. He doesn't have standing to sue. Fifth Circuit: Something like 40 years of precedent say otherwise. The case can proceed.
- Noncitizen victims of serious crimes (and qualifying family members) who cooperate with law enforcement are eligible for special visas, but the feds tend to take an absurdly long time processing the applications (and even the work authorization applications that would let visa applicants work in the meantime). Some applicants sue. Sixth Circuit: Their complaint at least plausibly alleges the sort of unreasonable delay the Administrative Procedure Act forbids. The cases may proceed.
- For over 935 weeks in a row, anti-Israel protesters have picketed services at a synagogue in Ann Arbor, Mich., holding signs with such inflammatory messages as "Jewish Power Corrupts" and "End the Palestinian Holocaust." Two members of the congregation sue, raising a variety of constitutional claims. Sixth Circuit: None of which can overcome the robust protection afforded by the First Amendment.
- Last year, Tennessee passed a law prohibiting physicians from performing abortions at specified "gestational ages," all of them pre-viability (at "fetal heartbeat," at six weeks, at eight weeks, etc.). The law also criminalizes a physician's performing an abortion if the physician "knows" that the abortion is "because of" race, sex, or Down syndrome diagnosis. District court: Preliminary injunction entered. Sixth Circuit: Affirmed. The pre-viability restriction conflicts with Supreme Court precedent, and the sex-race-Down-syndrome provision is unconstitutionally vague. Partial concurrence in the judgment: I agree that Supreme Court precedent invalidates the first bit, but that precedent is unpersuasive. And the second bit isn't vague.
- Much like the Second Circuit, the Seventh Circuit isn't all that concerned about strip clubs' being excluded from federal COVID relief funding.
- After the Supreme Court ruled that life sentences without possibility of parole for crimes committed under the age of 18 are unconstitutional, Missouri officials began to offer that possibility. Eighth Circuit (over a dissent): But the state's new policies and practices are constitutionally deficient. For instance, inmates are allowed one delegate at parole hearings, and the delegate is not permitted to speak about a range of subjects (like an inmate's efforts at rehabilitation) that the parole board must consider when making its decision. Victims and law enforcement, on the other hand, can speak with no limitations on subject matter.
- Was Rep. Devin Nunes defamed when Heart Publications published an article claiming he was involved in a conspiracy to cover up undocumented laborers at his family's dairy farm? Eighth Circuit: He at least survives a motion to dismiss. But we decline his invitation to revisit New York Times v. Sullivan, since we can't actually do that.
- Upset by a business deal gone bad, two Australian citizens start an international campaign to inform the public about their side of the story, sending hundreds of emails to employees of their former business associate and even hiring vans to drive around L.A. displaying messages criticizing him. The business associate sues the men for stalking and wins $2.2 mil in damages. Ninth Circuit: But all of their activity was protected by the First Amendment, so no dice. Dissent: The First Amendment doesn't protect foreigners outside the United States.
- A recent California law imposes civil and criminal penalties on employers lest they compel unwilling employees to agree to arbitration as a condition of employment. Is the law preempted by the Federal Arbitration Act? The Ninth Circuit says no, but the penalties are no good. Dissent: C'mon, this is just so Ninth Circuit of you guys.
- Earlier this year, California's governor issued an executive order imposing a moratorium on the death penalty. Does that moot a long-running suit over successive iterations of the state's lethal injection protocols? Ninth Circuit: Not at all. There's nothing stopping him or a future governor from rescinding the order. Separately, district attorneys from three counties can't intervene in the suit. Dissent: The DAs are trying to restore the death penalty (pursuant to a 2016 proposition passed by voters), and the California attorney general is not. They should be allowed to intervene.
- Sacramento, Calif. inmate experiences morphine withdrawal after staff cut him off cold turkey—which they did after discovering he was hoarding his meds instead of ingesting all of them. Eighth Amendment violation? Ninth Circuit: Might could be. Prison policy requires staff watch inmates ingest morphine when dispensed, and there's no deference for officials not following policy. New trial.
- The U.S. Forest Service obtained an easement in 1962 for a logging road across two private properties neighboring Montana's Bitterroot National Forest. Nearly half a century later, the Forest Service announced the road provided public access to the forest, leading to traffic hazards and trespassing. The neighbors sue to confirm that the easement doesn't allow public access. Ninth Circuit: Alas, the Quiet Title Act's statute of limitations is jurisdictional, and the case was brought too late.
- Transgender English professor seeks tenure but is denied under suspicious circumstances. She sues, alleging violations of Title VII, seeking compensation and reinstatement with tenure. Tenth Circuit: While this appeal was pending, the Supreme Court ruled in Bostock v. Clayton County that discrimination based on gender identity violates Title VII, which makes this case a lot easier.
- Eleventh Circuit (1985): It violates the Eighth Amendment for corrections officers to leave an inmate with a bleeding wound sitting around for two hours before getting him medical attention. Eleventh Circuit: (2021): That case was about a head wound that left a pool of blood. But this case is about a cut to the hand that left a "path of blood" as the officer escorted the plaintiff to a holding cell. Qualified immunity. Concurrence: He sued the officer who walked with him for a few minutes but not the officers he was handed off to, who were the ones who left him for hours.
There are more than 20,500 federal law enforcement officers in Texas, Mississippi, and Louisiana, and, thanks to some recent decisions in the Fifth Circuit, nary a one of them can be sued for violating the Constitution. Apart from just being straight-up terrifying (the cases involve federal police beating people up and trying to shoot them for no reason), this de facto absolute immunity for federal officers is a radical departure from history. That's why Professor Peter Schuck, who literally wrote the book on constitutional accountability, Professor Seth Stoughton, a former police officer, and a cross-ideological group of public policy organizations have all filed amicus briefs urging the Supreme Court to take up Byrd v. Lamb, an IJ case, and ensure that victims of unconstitutional misconduct by federal officers have a legal remedy. Click here to read the briefs. Click here to watch IJ client Kevin Byrd tell his story.