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.
At a Virginia gubernatorial debate last month, both candidates demonstrated an appalling lack of understanding of what qualified immunity is and what it does. Over at The Washington Post, IJers Patrick Jaicomo and Chad Reese set the record straight.
- On July 21, 1780, Alexander Hamilton wrote a letter to the Marquis de Lafayette warning of threatening British troop movements. Hundreds of years later, the letter was named as a defendant in a civil forfeiture action filed by the feds. First Circuit: The letter's former owner (who inherited it from his grandfather) could not contest the merits of the civil forfeiture action because—under Massachusetts law—the letter is a public record that can only be owned by the state gov't. The district court therefore properly awarded ownership of the letter to the Commonwealth.
- In the middle of the night, Orono, Maine police knock on the doors and windows of a college student who is suspected of burglarizing the apartment of his ex-girlfriend, whom he'd been arrested for harassing months earlier. (And indeed the knock-and-talk does yield damning evidence of his guilt, though charges are dropped when the ex declines to participate.) First Circuit (over a dissent): The officers violated clearly established law by entering the curtilage of the student's residence without a warrant or exigent circumstances. No qualified immunity.
- Can a quartet of high-tax states sue to challenge the constitutionality of Congress's 2017 decision to cap the state and local tax ("SALT") deduction? Well the Second Circuit says the courthouse doors are wide open to New York, Connecticut, New Jersey, and Maryland, which have standing to sue. And so do they win? No, says the Second Circuit, the Constitution does not mandate the SALT deduction and capping it was not coercive.
- Allegation: New York City fire marshal investigates the cause of a fire that destroyed a five-story brownstone where a movie was being filmed. After he concludes that the movie crew caused the fire, his supervisors demand he file a false report blaming a faulty boiler system. He demurs and files a complaint, after which he is reassigned, reducing his responsibilities and overtime opportunities. He sues, alleging First Amendment retaliation. Second Circuit: And his case should not have been dismissed.
- Allegation: Man rapes his cousin-in-law, uses his connections in law enforcement—he's an assistant warden at a Louisiana prison—to avoid investigation, prosecution. Can the victim sue the DA who declined to prosecute? In February, the Fifth Circuit said no. But then three retired federal judges filed an amicus brief urging the court to reconsider. Fifth Circuit (this week, now with a dissental): The victim doesn't have standing to sue, and the retired judges know it. But that said—and despite the vociferous objections of the defendant—there's no problem with the judges filing the brief.
- Western Michigan University requires student-athletes to be vaccinated against COVID-19, but considers individual requests for medical or religious exemptions on a discretionary basis. Sixteen student-athletes apply for religious exemptions that are either ignored or denied. They sue, alleging a Free Exercise violation. The district court preliminarily enjoins enforcement of the policy, and the school seeks a stay. Sixth Circuit: Stay denied. Because the rule is not generally applicable—it allows discretionary exemptions—it is subject to strict scrutiny, which it will probably fail.
- At around age 20 (and still today around age 30), man disavows testimony he gave at age 17 accusing his father of sexual abuse. District court: A reasonable juror might find the recantation less reliable than the accusation because he could have recanted earlier and because his father's ex-wife helped the recantation process along, arguably showing more initiative than he did. Seventh Circuit: Fair enough. Life without parole it remains.
- Dirty Chicago cop shakes down drug dealers for guns, drugs, and cash. After the FBI catches wind of this, they plant money in places they think he might rob. He does, and is charged, among other things, with stealing money belonging to the United States. Cop: But I didn't know it belonged to the United States when I stole it! Seventh Circuit: Knowledge of the money's owner is not an element of the crime.
- When conservative student groups invited Ben Shapiro to campus, the University of Minnesota (citing security concerns arising from likely protests) booked the event in a small and out-of-the way location. Eighth Circuit: The student groups' First Amendment claims fail on esoteric grounds of standing and mootness. Dissent: The university had previously hosted controversial speakers in the middle of campus. But when the groups invited Shapiro to speak, the university president directed that, "I do not want this in the middle of campus." That should have been enough for this case to go to trial.
- California Assembly Bill 5 significantly expanded the number of workers who must be classified as employees, rather than independent contractors. Authors, journalists, and photographers—who usually work as independent contractors—sue, alleging that the law burdens their speech. Ninth Circuit: Nah, it just regulates the economic activity of speakers.
- Washington state couple lets their son borrow their car in 2016 for a trip to Florida. Yikes! He's pulled over with marijuana in Navajo County, Arizona. County attorney: We may not have charged him—much less his parents—with a crime, but we're keeping the car because the couple filled out a form incorrectly. (They did not sign a filing "under penalty of perjury.") Ninth Circuit: The couple's constitutional challenge to the state's "labyrinthine" forfeiture process should not have been dismissed on procedural grounds, and, moreover, the couple stated a viable state-law due process claim. (This is an IJ case. The county returned the car shortly after the suit was filed.)
- San Francisco children's store makes claim under insurance policy for losses caused by "Stay at Home" orders. The policy covers "direct physical loss or damage to property" and also excludes "loss or damage caused by or resulting from any virus." And, according to the Ninth Circuit, these words mean the kids are not all right. No coverage under the policy. (We discussed a similar recent decision from the Sixth Circuit on a recent podcast.)
- All of the immigration detention facilities that the feds use in California are privately run, and, in 2019, the state passed a law requiring them to close. As it happens, the law allows some private detention facilities to remain open permanently—the ones that the state uses. (Other state-used facilities must be phased out by 2028.) Feds: Umm, can they do that? Ninth Circuit (over a dissent): Probably not, so here's a preliminary injunction.
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