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.
This week, the Supreme Court ruled that appeals courts were wrong to deny qualified immunity to police officers in two separate cases, each of them involving unruly suspects in fast-developing situations. Over at Forbes.com, IJ's Nick Sibilla gives the backstories and the upshot—that the Court is not necessarily abandoning its recent reining in of qualified immunity so much as continuing its long-held deference to officers' split-second decision-making.
- "Few interests are more compelling than protecting public health against a deadly virus." So says the First Circuit in denying a request for a preliminary injunction against Maine's requirement that healthcare workers be vaccinated against COVID-19. Exempting workers for a medical reason, but not for a religious or philosophical reason, does not subject the regulation to strict scrutiny, and even if it did it still wouldn't violate the First Amendment.
- Peter Brimelow, an English immigrant who in 2016 wrote "whites are America," sues the New York Times for defamation after the paper accuses him of being a white nationalist (among other things). Brimelow—who in 2017 also said "Hispanics do specialize in rape, particularly of children" and is the publisher of VDARE, which is named after the first white child born in America—vehemently denies the claims and views himself as more of a "civic nationalist." Second Circuit: There are many possible reasons why this claim is meritless, but we'll go with failure to prove actual malice.
- In enacting the Public Readiness and Emergency Preparedness Act, Congress may have delegated to HHS authority to interpret some of the law, but not the scope of federal jurisdiction. In fact, the Third Circuit says it hasn't heard of any statute that went and did something like that. So this case brought by survivors of people who died of COVID-19 in nursing homes goes back to state court.
- Man begins to slowly drive his vehicle away from Garland, Tex. officers in spite of their instructions to stop. They open fire, seriously wounding him. Fifth Circuit: Which may or may not have been reasonable, but clearly established law refers only to officers standing behind a moving vehicle, and these officers were "toward the front" of the man's vehicle. Qualified immunity.
- "From first kiss to orgasmic finish, this book is every Austen fan's dream come true—the story you love, with the heat turned up to high. It will come as no surprise that the dashing Mr. Darcy is as passionate and intense with his knickers off as he is with them on." Unfortunately for a South Dakota prisoner, it is also no surprise that the prison can constitutionally seize a copy of Pride and Prejudice: The Wild and Wanton Edition. But there's no legitimate penological interest in preventing prisoners from seeing classic art. So holds the Eighth Circuit in an opinion featuring Auer deference, Bathsheba, constitutional avoidance, Coppertone sunscreen, King David, Matisse, mootness, overbreadth, Picasso, Pullman abstention, and the Sistine Chapel.
- In April 2020, a district court entered a nationwide preliminary injunction dictating aspects of ICE's response to the COVID-19 pandemic—including requiring the release of substantial numbers of detainees. Ninth Circuit: As ICE was confronting an unprecedented and evolving public health problem, it found its nationwide policies almost immediately subject to judicial revision. That kind of systemic, nationwide relief requires evidence of a systemic, nationwide constitutional violation. Without minimizing important concerns raised by plaintiffs, those concerns do not justify such sweeping relief. Dissent: The injunction here was not sweeping at all, as it was limited to medically vulnerable detainees and left the agency significant discretion to craft specific policies for those detainees.
- When is a "voucher" provided via a class-action settlement actually a "coupon," and therefore subject to more scrutiny? Learn all about it in this Ninth Circuit opinion that blows up a settlement where the total amount the defendant health club chain paid to the plaintiffs was about the same as it paid to the plaintiffs' attorneys.
- Does it violate the Fourteenth Amendment for police to lie under oath at a driver's-license-suspension hearing? Ninth Circuit: Not if the state provides another hearing.
- Arizona man commits a grisly murder, dousing his victim in gasoline and burning him alive. He's convicted of first degree murder and sentenced to death. Twist! The murder occurred in a 38-day period between SCOTUS holding Arizona's death penalty unconstitutional (because it allowed the judge, not the jury, to be finder of fact) and Arizona's enactment of a new death penalty law. An ex post facto violation? Ninth Circuit: No. The crime was still death eligible, there was just no procedure for imposing the death penalty at the time of the crime. Dissent: He couldn't have been given the death penalty and now he can. Sounds ex post to me.
- After long stints in solitary confinement in Utah prison, teenager with severe mental illness hangs himself, dies. Was it clearly established that the Eighth Amendment prohibits housing severely mentally ill prisoners in solitary and in cells that contain hanging implements and a tie-off point, regardless of the officers' subjective knowledge about the prisoner's suicidal ideation? Tenth Circuit: No. Qualified immunity. (Nor is anything clearly established for next time.)
- Transgender inmate seriously assaulted at three different Georgia prisons for male inmates. Allegation: Corrections officials knew the inmate was transgender and had been previously attacked but didn't do anything to protect against additional attacks. Eleventh Circuit: Qualified immunity.
- Constitutional disparate-impact claims are still not a thing, reminds the Eleventh Circuit. So without a showing of discriminatory intent, a Florida state constitutional amendment allowing most felons to vote—but only after they have paid their legal financial obligations—is not unconstitutional under the Equal Protection Clause or the Nineteenth Amendment. Even if its effect falls harder on black women.
- Forty years ago, a federal district court in Georgia concluded that the zoning regulations for adult businesses in the Atlanta City Code were unconstitutionally overbroad and permanently enjoined their enforcement. Fast forward to today, when the owners of an adult novelty and video store challenge the current zoning code for the same thing. Eleventh Circuit: The 1980 version of the code defined "adult theater" to include homes receiving naughty movies on Cinemax; this law isn't nearly so broad.
- And in en banc news, the Fourth Circuit will reconsider its decision that a North Carolina charter school's dress code—which requires girls to wear skirts, jumpers, or skorts—does not violate equal protection but might violate Title IX.
Civil forfeiture allows the government to take your stuff without proving you guilty of anything, all (supposedly, dubiously) to fight crime. Now a new IJ report looks at what it's like to fall victim to this dastardly practice. Titled Frustrating, Corrupt, Unfair: Civil Forfeiture in the Words of Its Victims, it surveyed victims of Philadelphia's notorious forfeiture program (since reined in thanks to IJ), finding they typically came from disadvantaged communities and had great difficulty trying to reclaim their property—often small amounts of cash and low-value cars, hardly the stuff of drug-kingpins. Many were entirely innocent. And because of bad laws, what happened in Philly could happen anywhere. Click here to watch a video about the report.