The Volokh Conspiracy
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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Wilmington, Del. outsources its impound program to private companies and "pays" them by giving them the power to keep and scrap people's cars. To no one's surprise, the system is rife with abuse. It's also unconstitutional, which is why this week IJ launched a suit to end Wilmington's tow-and-impound racket once and for all.
- Fed Courts nerds, get HYPED: On top of the usual writ of supervisory mandamus, there is, your editors have learned, an even rarer writ of advisory mandamus. Which means the First Circuit can review discovery orders over which it otherwise wouldn't have jurisdiction. The upshot? A group of truckers alleging that Rhode Island's former governor and other officials intended for a toll system to discriminate against interstate commerce will not be getting their depositions, thank you very much. Because who really cares what lawmakers intended?
- A photo of Good Day Philadelphia host Karen Hepp ends up on Facebook, without her consent, in an advertisement for a dating service. Not great for a well-known TV host (or honestly, anyone). But websites usually can't be held liable for user-generated content. Can Hepp sue Facebook anyway? Third Circuit (2-1): Indeed she can. The protection for websites doesn't extend to intellectual property, and that includes "right of publicity" claims. No personal jurisdiction over Imgur and Reddit, though, despite the "indecent user commentary" on the photo.
- "Though the Ex Post Facto Clause rarely appears in casebooks or civics classrooms, the Framers ranked it among the Constitution's most fundamental guarantees." So says the Third Circuit, holding that a murderer will get at least a chance to enforce the clause. Long after the man went to prison, New Jersey changed the rules to make it harder to get parole. If, says the court, those changes created a significant risk of prolonging the man's incarceration, they're unconstitutionally retroactive and can't be applied to him.
- Fed up with a private citizen's repeated open-records requests, Conyngham Township, Pa. officials turn the tables by serving him with an open-records request of their own, demanding his tax records and other personal files. Which, says the Third Circuit, is both super weird and perhaps grounds for a First Amendment retaliation claim.
- Not with a bang, but with a birthday: The Fourth Circuit vacates its earlier decision invalidating the federal restriction on buying guns when under 21 because the sole plaintiff in the case has now turned 21.
- A car illegally stopped in the dead of night, a pressure-washer, and an intransigent Libertarian candidate for president all add up to a grant of qualified immunity in this Fifth Circuit case. (Judge Willett, in dissent, would rather have a jury wrestle with this strange scenario.)
- Louisiana: A 30-year-old consent decree about one judicial district obviously immunizes us from any Voting Rights Act suits about our other judicial districts, right? Fifth Circuit: We're honestly a little mad at you for even making us explain why that's wrong.
- Sovereign citizen insists he is the rightful heir to and owner of an 1848 land grant currently used for mining and timber harvesting. Which, says the Fifth Circuit in a shocking twist, he is not.
- Can Scott County, Tenn. be held liable for being "recklessly," "deliberately indifferent" to a pretrial detainee's serious medical needs? Or must jail staff have subjectively known that they were acting with deliberate indifference? Sixth Circuit (over a dissent): Recklessness will suffice. So the case of a pretrial detainee who was denied medication, after which she suffered a slew of seizures and drank out of the toilet, goes back to a jury.
- Medina, Ohio restaurant sues its insurer, seeking coverage for business losses incurred because of the pandemic and associated shut-down order. Sixth Circuit: Insurance contracts may be mind-numbingly convoluted, but one thing is clear—this restaurant is out of luck.
- Kentucky prisoner gets in a scrap with his cellmate during which he ruptures his plantaris muscle. (He also has his eye gouged out, but don't worry, he "shove[d] it back in with his palm.") The rupture causes a hematoma, leading to a "painful, softball-size mass on his calf." Prison doctors decline surgery, prescribe the tincture of time. He sues. Sixth Circuit: That's actually the standard of care for this injury, which typically resolves on its own, so no liability. Also, the prisoner owes defendants' expert witness $1,800 for his two-hour deposition.
- Love may know no bounds, but the Hague Convention on the Civil Aspects of International Child Abduction certainly does. In October 2017, Australian man strikes up online romance with Bostonian woman. She visits him that December. They're married two months later. She becomes pregnant soon after. And amid a raft of troubling allegations about the husband's abusive behavior, they separate three days after the child's birth, with the wife promptly returning to America with the child (and allegedly with the husband's blessing). A year passes, after which the husband petitions to have the child returned to Australia. Sixth Circuit: No dice; the child's home is in the U.S. of A.
- Practice pointer: If you're a pro se appellant and the Seventh Circuit recruits a D.C.-based Latham & Watkins attorney to represent you for free, consider doing anything other than, well, ignoring the lawyer and telling the court thanks but no thanks because Latham isn't a local firm. Panel: "To the extent that [the appellant] may believe he can reject lawyers until we manage to recruit one he likes, he is mistaken." The order recruiting counsel? Rescinded. The appellant's pro se briefs? Reinstated. The district court's judgment? Summarily affirmed.
- Iowa jail has a policy of not allowing visits with minor family members, meaning that this pretrial detainee was denied the right to see his two kids for nearly a year. A constitutional violation? Eighth Circuit: Yes, but not a clearly established one. Qualified immunity . . . this time.
- Residents of L.A.'s Skid Row neighborhood, tired of homeless encampments, bring suit against the county and city. The district court finds that L.A.'s homelessness crisis is the result of structural racism and issues a "sweeping" preliminary injunction, requiring, among other things, "the escrow of $1 billion to address the homelessness crisis, offers of shelter or housing to all unhoused individuals in Skid Row within 180 days, and numerous audits and reports." Ninth Circuit: That's a problem because none of the plaintiffs' claims was based on racial discrimination, "and the district court's order is largely based on unpled claims and theories." Injunction vacated.
- Army lieutenant orders his platoon to fire on three Afghans riding a motorcycle who weren't presenting a threat. Two of the men die. The lieutenant is court-martialed, convicted of murder; he exhausts his direct appeals and files a habeas petition. But wait! Three days after filing, the president pardons him. District court: He waived his habeas rights by accepting the pardon, which constituted a legal confession of guilt. Tenth Circuit: No. Accepting a pardon may imply a public perception of guilt, but we won't presume accepting a pardon is a guilty confession. He continues to suffer collateral consequences from the conviction, so his habeas petition must be considered.
- A Georgia inmate believes Islam prohibits him from trimming his beard, but prison policy prohibits beards longer than one-half inch. District court: Untrimmed beards present too much of a security concern—how about a three-inch beard? Eleventh Circuit: The inmate never requested a three-inch beard—he asked for an untrimmed one. But untrimmed beards are dangerous in prisons, so he's out of luck. Dissent: Let the man grow his beard.
- Poor David Sosa. A man of the same name has an outstanding warrant from Texas connected to a 1992 crack-cocaine conviction. Our David Sosa, though, is an airplane engineer in Martin County, Fla. who has been arrested not once but twice on the other man's warrant, despite a 40-pound weight difference, an absence of tattoos, and different birthdays. Did it violate the Fourteenth Amendment for deputies to persist in detaining him after they knew he might be the wrong David Sosa? Eleventh Circuit (over a dissent): Quite possibly. His case can proceed.
- And in en banc news, the Tenth Circuit will not reconsider its earlier ruling that a criminal defendant can make an intelligent decision to accept a plea bargain even if he has been "grossly misinformed" about the risks of going to trial. "That puzzles me," says Judge Hartz, dissenting.
Today, a federal district judge in Chicago rejected the City of Zion, Ill.'s bid to dismiss an IJ lawsuit challenging its rental inspection program. Zion had argued that because it had only threatened—not executed—warrantless, nonconsensual interior home inspections, the objecting tenants did not have standing to sue. With that argument rejected, the tenants' Fourth Amendment case can proceed. Click here for more.
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