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.
Qualified Immunity can be a confusing topic, especially if the people explaining it to you don't understand it. So it is with Virginia gubernatorial candidates Terry McAuliffe and Glenn Youngkin, who have both come out in support of an imaginary version of that doctrine. But never fear! IJ Attorney Patrick Jaicomo and Assistant Director of Activism Chad Reese set them straight in the Washington Post.
- Capitol Police officers have a habit of forgetting their guns in the bathroom. When one officer, with a history of disciplinary problems, emails a picture of one such gun to a reporter, creating a media frenzy, she is demoted for violating the department's media policy. A First Amendment violation? D.C. Circuit: On one hand, this was a matter of public concern. On the other hand, the officer said she didn't want the reporter to do anything with the photo and only claimed she had spoken on a matter of public concern months later. Balanced against the department's interest in efficiency, harmony, and security, there's no First Amendment violation.
- Among a series of similar blockbuster rulings that came down on Thursday, the First Circuit holds for the first time that page 15, line 23 of its recent opinion in U.S. Bank, N.A. v. Desmond (In re Mbazira) should read "Id. (emphasis omitted)." and not "Id. (emphasis omitted)."
- Having given this defendant's plaint a thorough perscrutation, Judge Selya of the First Circuit undertakes a two-step pavane that pellucidly limns the reasons why, under the protean standard of reasonableness, a 46-month term of immurement was a condign punishment for a felon-in-possession charge. (Ed.: No vocab quiz this week; Selya didn't use any obscure words.)
- Federal law prohibits violence against those trying to exercise their religion at a "place of religious worship"—which, says the Second Circuit, does not include the card tables in Queens where members of the Falun Gong protest their treatment at the hands of the Chinese Communist Party. (Concurrence: What part of "violence at places of worship" counts as "interstate commerce," exactly?)
- Beating someone one time for being a Christian might not be "religious persecution." Jailing someone briefly for being a Christian might not be. Threatening once to punish someone if he returns to church might not be. Third Circuit: Sure, guys, but all three together maybe could be, right?
- Two years ago, the Supreme Court limited the SEC's power to order disgorgement to situations where the disgorgement was "for the benefit of investors," which, says the Fifth Circuit, is easily satisfied when the SEC demands you disgorge profits so it can give them back to specific defrauded investors.
- Department of Housing and Urban Development: We may have promulgated rules limiting our discretion when tenants in Section 8 housing face substandard conditions, but those rules were really more like guidelines. Fifth Circuit (over a dissent): Sorry, those guidelines look a lot like rules. Follow 'em.
- Perhaps you heard about the recent Texas law banning most abortions and deputizing the public to enforce that ban? No? Well, it was easy to miss. Anyway, the Fifth Circuit has now explained why it is allowing the law to remain in effect: The same reasons they previously allowed it to remain in effect.
- The Township of Canton, Mich. has a tree ordinance that requires property owners to get a tree removal permit and to replant three trees for any "landmark trees" that are removed from a property (regular old trees must be replanted one to one). Developer: As applied to us, that's a per se taking, a regulatory taking, and an unconstitutional condition. Sixth Circuit: We agree it's an unconstitutional condition, but before we get to that, here are some fascinating anecdotes about the history of tree ordinances.
- Lung-cancer patient is arrested and then (allegedly) denied his prescribed medication and forbidden from continuing his chemotherapy, resulting in his death. Which, says the Sixth Circuit, sounds awful, but also doesn't sound like the fault of the Acting Commissioner for the Department of Corrections, who at most stood idly by while the prisoner was entrusted to a third-party medical contractor that proved inadequate.
- Some famous legal doctrines can be remembered through mnemonics. The statute of frauds is remembered by the acronym "MY LEGS." And the equitable doctrine of laches is remembered by the phrase "nothing is ever barred by laches." On that note, the Sixth Circuit holds that a motion to enforce a consent decree was not barred by laches.
- The Michigan Department of Corrections serves a universal religious diet to all prisoners with religious dietary needs. Since some religions prohibit eating meat, the diet is vegan. Uh oh! Two Jewish inmates believe their religion requires them to eat a meal with kosher meat and a meal with dairy on the Jewish Sabbath and four Jewish holidays (and also cheesecake on Shavuot). Is the forced vegan diet a RLUIPA violation? Prison officials: This could cost us up to $10,000 a year! Sixth Circuit: Your food budget is $39 million; there's no compelling interest in avoiding a 0.02% increase.
- If you're a convicted felon, it's best not to shoot up in a residential parking lot. If you are going to shoot up in a parking lot, though, it's best not to leave a BB gun in plain sight in the back seat, because that might lead to a search of the car. But if you absolutely must leave a BB gun in plain sight in the back seat, it is strongly in your interest not to have a real gun in the front seat, because that is a federal crime. Sixth Circuit: Conviction for felon in possession affirmed.
- The American Board of Medical Specialties is the nonprofit that decides which physicians are "Board Certified," a credential that requires annual continuing education. The Association of American Physicians & Surgeons sues the Board, alleging that it violated the Sherman Act by conspiring with hospitals and insurers to make Board Certification effectively mandatory. Continuing education, they argue, produces no measurable benefits, yet the Board has convinced hospitals and insurers to deny staff privileges and in-network status to physicians who don't pay for it. Seventh Circuit: Twombly'd!
- In Arkansas, it's a crime to sport a fully cracked windshield (i.e., one with a crack running from roof post to roof post). It is not, however, a crime to sport a partially cracked one. But what if a police officer sees your partially cracked windshield and pulls you over anyway? And searches you? And finds your handgun and methamphetamine? In those circumstances, you would be out of luck, says the Eighth Circuit.
- In this appeal concerning whether a tax debt was discharged in bankruptcy, the Ninth Circuit, per District Judge Breyer (Stephen's brother), just attaches the trial court ruling and says "ignore footnote six." Kind of phoning it in, guys.
- 2015: Man pleads guilty to charges predicated on the notion that conspiracy to commit Hobbs Act robbery is a crime of violence. 2019: Supreme Court says conspiracy to commit Hobbs Act robbery is not a crime of violence. Man: I would like to take back my plea. Ninth Circuit: You waived your appeal rights and thereby assumed the risk that the law might change in your favor. The conviction and 14-year sentence stand. But don't let pass unnoticed the Ninth Circuit's deplorably all-too-common characterization of O'Reilly Auto Parts as "O'Reilly's Auto Parts." IT'S NOT POSSESSIVE.
- Do foreign nationals have a due-process right to enter the United States to attend a civil-forfeiture trial involving their property? No, says the Eleventh Circuit, in an uncharacteristically pleasing opinion (from a visual, typographical perspective). Improved margins? And is that a new font? Keep up the good work.
- When Follies, a strip club in Chamblee, Ga. obtained a liquor license for 2018, it was allowed to sell booze until 3:00 a.m. But in February 2018, the City enacted an ordinance that required all businesses to stop selling liquor by 2:00 a.m. Monday through Saturday, and by 11:59 p.m. on Sunday. The club sues, alleging that they have a vested right to sell liquor until 3:00. Eleventh Circuit: You have a vested right in your liquor license, not in the specific hours you're allow to serve liquor. (Doesn't really matter one way or the other, though—the law drove Follies under last year.)
- And in en banc news, all federal appellate judges in active service decided not to create any en banc news this week.
After Rudy Carey overcame his long battle with drug and alcohol addiction in 2007, he wanted to help others who were similarly struggling. So he studied and trained to become a substance-abuse counselor, and even won a "counselor of the year" award. But after five years of work, Virginia told him he could not be a counselor because of an assault conviction from 2004, when Rudy was still an addict. But people change, and when they do, they deserve a fresh start. That's why—represented by IJ—Rudy is fighting back!