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.
New on the Short Circuit podcast: the panel discusses restrictions on "wild and wanton" materials in prison and a case of police perjury.
- Do noncitizen detainees held without possibility of release pending the completion of their removal proceedings have the right to a bond hearing after six months? Maybe, maybe not depending on the facts. Ironically, says the First Circuit, that dooms a class action because these class members have different facts.
- Encincture. Pestilential. Lapidary. Precarity. The proper use of the first declension nominative plural form of a Latin feminine noun. These are all words that William F. Buckley and Judge Selya might have used if they ever had a conversation (the Short Circuit staff have no record they ever did, unlike with Buckley and Gore Vidal). As evidence, see this First Circuit Title IX appeal concerning Brown University. (Although, to be honest, for "pestilential" Judge Selya quoted the Brown chancellor referring to the Title IX settlement agreement.)
- Invoking (albeit implicitly) the ancient English maxim that "he who smelt it, dealt it," the First Circuit rejects a habeas petitioner's invitation to find that a trial court's credibility determination "stinks like 'a 5 week old, unrefrigerated, dead fish.'"
- New Hampshire officials deny involuntarily committed mental health patients access to a judge within the time prescribed by state law and the Constitution. Or so they and some hospitals argue. But do they have standing? First Circuit: Um, yeah, it's pretty obvious. What about the Eleventh Amendment? Dude, Ex parte Young. Is the case moot? Hmmm, probably not but argue about it on remand.
- In response to the COVID-19 pandemic, New York enacted a law that completely prohibited commercial landlords from seeking rent from certain commercial lessees for a period of almost 16 months. Does this violate the Constitution's Contracts Clause, which provides that "[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts"? Second Circuit (over a dissent): Even though the Supreme Court has practically written the Contracts Clause out of the Constitution, at the motion to dismiss stage we cannot definitively say that it was reasonable and appropriate to permanently bar commercial landlords from collecting 16 months of rent to which they were contractually entitled.
- In the November 2020 election, the clerk of Harris County, Tex. began allowing drive-through voting. Three candidates and one voter sue, alleging that the county's departure from state voting requirements violated the Elections Clause of Article I of the Constitution, which grants state legislatures the sole power to set the "Times, Places and Manner of holding Elections for Senators and Representatives." Fifth Circuit: But the 2020 election has passed, so nobody has standing. Dissent: The majority is confusing standing with mootness, the clerk has vowed to allow drive-through voting in the future, and Harris County has plainly ignored multiple provisions of state election law. This isn't just a live case, it's an easy live case.
- Allegation: American citizen—an international businessman born in Somalia who makes frequent return visits for business and charitable endeavors—is approached by an FBI agent, asking that he become a confidential informant. The citizen denies the request to act as a paid informant, but volunteers to inform the authorities of any wrongdoing of which he becomes aware. After refusing the FBI's request, the citizen is subject to endless hassles and delays every time he flies. He sues, asserting a variety of claims against an alphabet soup of federal agencies. Fifth Circuit: That's a bummer, and you seem like a good guy, but flying sucks nowadays. Case dismissed.
- After the FDA denied an application to market flavored e-cigarettes, the company moved for a stay pending its petition for review. Fifth Circuit: Stay granted. Among other things, the FDA violated the "'surprise switcheroo' doctrine" when began requiring manufacturers to produce long-term clinical studies that it had previously expressly said were not necessary.
- During a traffic stop for driving with an expired registration, driver attempts to roll up windows and drive away. Over the course of ten seconds, an Arlington, Tex. police officer jumps onto the passenger-side running board and—when the car begins to move—sticks his gun through the window and shoots the driver four times, killing him. The family sues for excessive force. Fifth Circuit: The shooting was reasonable, so qualified immunity. (NB: The officer, who had been repeatedly reprimanded for his conduct, has since been indicted by a grand jury for homicide and fired from the department, so at least a few people disagree with this assessment.)
- (Ed.: An IJ Senior Attorney was supposed to summarize this Fifth Circuit campaign-finance decision—in which the court holds per curiam that a political candidate has a constitutionally protected interest in spending campaign contributions, but no constitutionally protected interest in receiving campaign contributions—but we can't get him to stop screaming.)
- Despite knowing his history of seizures, Cook County, Ill. jail officers assign man to top bunk, from which he falls, breaking his ankle. An Americans with Disabilities Act violation? District court: You could have filed a grievance when you were assigned to the bunk; waiting until you were injured was waiting too long. Seventh Circuit: Vacated. Detainees can file a grievance follow any "incident, problem, or event." Falling off the top bunk is an "incident" and "event." His claims can go forward.
- You've probably heard critics call judges wannabe "philosopher kings," but perhaps an even more grating epithet is labeling someone with Article III tenure a "de facto super-athletic department director." And yet that's what the Eight Circuit said the district court turned itself into by issuing an injunction in a Title IX case, which the reviewing court partially reversed.
- Plaintiffs: Arizona rewrote our contractual obligations to favor politically powerful auto dealers! Surely that violates the Contracts Clause? Ninth Circuit: Even though the Supreme Court has practically written the Contracts Clause out of the Constitution . . . wait, no, we can stop there. You lose."
- Bixby, Okla. officer shoots and kills fleeing motorist. Officer: The vehicle was bearing down on me. District court: But none of the bullets struck the vehicle from the front. Tenth Circuit: So the case goes to a jury. Officers can't shoot unless there's "actual and imminent" danger. No qualified immunity.
- Tenth Circuit: But it was not unreasonable for a Salt Lake City officer to fatally shoot a man suspected of hiding a weapon in his pants, especially when he quickly pulls his hands out of his waistband.
- An Eleventh Circuit opinion with one of the longest footnotes we've ever seen holds something about standing under the Fair Debt Collection Practices Act. Whatever. Kudos, though, to the dissent's cookie-batter simile and its well-turned phrase "rain on the Court's parade of horribles." (Was Judge Tjoflat inspired by Judge Rosenbaum's use of a similar phrase last year? Inquiring minds want to know.)
- A day before Georgia's general election in November 2018, the nonprofit Common Cause sued about alleged security problems in the voter-registration system. Common Cause then asked for a "very, very narrow" temporary restraining order rather than the broader relief it had originally requested. The district court did issue a TRO, although it wasn't quite what Common Cause had asked for. The next year, Georgia enacted new laws, and Common Cause agreed to dismiss its suit. So here's the question: was Common Cause a "prevailing party"—meaning it was entitled to attorney fees under the civil-rights laws? Eleventh Circuit: They prevailed on the TRO. Pay up.
- Ever wondered about the history of 911 and its migration to VoIP technology? Today's your lucky day! The Eleventh Circuit brings us the tale in a dispute over whether 911 providers can charge VoIP customers more than other customers. (The answer is no.)
- Motorcyclist pops wheelies, takes officers on a lengthy chase at speeds between 100 and 130 mph. After the motorcycle skids to a stop, the sheriff of Appling County, Ga. fires a buckshot that misses the driver. Driver puts his hands back on the throttle, and officer fires again, striking the driver in his helmet, face, and neck. Eleventh Circuit: Yeah, that's fine. Qualified immunity. Judge Jordan: Judge-made qualified immunity "is a regrettable state of affairs," but "I reluctantly concur."
- Off-duty Tuskegee, Ala. officer working security at a private event in full uniform fights with motorist. When the motorist is handcuffed and unresisting, the officer maces and beats him. Was the officer acting "under color of law"? Eleventh Circuit: Yep, so there's no need to disturb his conviction (leaving in place his three-year sentence). (For a lovingly crafted podcast on the meaning of color of law, please click here.)
- And in en banc news, the First Circuit will reconsider its recent decision holding, based on First Circuit precedent, that private citizens may not file a suit against a polluter under the federal Clean Water Act when a state is already diligently prosecuting a state law analogue to the Act.
Cindy Tucker leads a nonprofit in Calhoun, Ga. that is trying to address the lack of housing options for people of modest means by building small homes of 540 to 600 square feet. She has contractors, financing, and housing plans at the ready, but she can't start work because the city bans houses of less than 1,150 square feet. This week, she teamed up with IJ to challenge the city's ban on tiny homes under the Georgia Constitution, which requires that zoning restrictions bear a substantial relationship to public health, safety, or general welfare. Click here to learn more.