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.
For 18 months, without a warrant, investigators pointed three surveillance cameras that recorded comings and goings at the home of an Illinois man 24/7 and allowed federal, state, and local officers to watch live from a remote location. Is that a search? Over at Bloomberg Law IJers Josh Windham and Daryl James urge the Supreme Court to take up the case of Tuggle v. United States and to reconsider its current Fourth Amendment doctrine, under which the answer to that question is a resounding no.
New on the Bound By Oath podcast: a deep dive into absolute prosecutorial immunity, a doctrine whose foundations are baloney.
- Fun historical fact: The word "cheat" derives from the legal doctrine of "escheatment" and the widespread perception that state escheators were more interested in enriching themselves than in property rights—a perception that this Third Circuit opinion suggests is maybe not purely "historical." (Way back in historic times, we discussed escheatment on the podcast — starting about around 24:40.)
- Probationer: After I was released from prison, my probation officer started having super-weird text conversations with my girlfriend about his love life. I want my supervised release ended early. District Court: Wow! Sounds like going through all that may have severely harmed your reintegration into society. So, request denied. Third Circuit: Whoa! We agree that you still need to be on supervised release, but we want to be clear that the officer's conduct was reprehensible and the trial court shouldn't have weighed it against you. It's not your fault. [Ed.: Friends, this judicial opinion contains an emoji. (Just thought you should know.)]
- In the 82 months ICE has held a Honduran immigrant in custody, they've transferred him at least 15 times to 6 different facilities in 4 different states. Can some court, somewhere, hear his habeas petition? Third Circuit: Potentially.
- Former Virginia middle school student files a pseudonymous lawsuit against school officials, alleging that during her time at a Fairfax County school, she was sexually harassed, sexually abused, and raped—and that school officials did nothing when alerted to the conduct. School officials: The plaintiff didn't seek permission to file pseudonymously, and by the time she told the court her real name, the statute of limitations had run. So the court has no jurisdiction. District Court: Well, that's both wrong and unjust. Fourth Circuit: Just so. Following the rules about pseudonyms is important, but failure to do so is not a jurisdictional bar.
- It is so obviously unconstitutional to arrest a journalist for asking questions, says the Fifth Circuit (over a forthcoming dissent), that Laredo, Tex. officials are not protected by qualified immunity—even in the absence of a prior case directly on point and even if they relied on an obviously unconstitutional statute. Moreover, ahem, as "The Institute for Justice, a respected national public interest law firm … rightly observes, the position urged by the City of Laredo in this case is 'dangerous to a free society,' for '[i]t assumes that the government can choose proper and improper channels for newsgathering—indeed, that the government can decide what is and is not newsworthy.'"
- Federal inmate breaks his CPAP mask. Inmate: It was an accident! Prison: We think not and hence strip you of 27 days' good-conduct time. Bureau of Prisons regional director: Affirmed. Magistrate Judge: Yep. District court: Uh huh. Fifth Circuit: Quite.
- In the 1990s, a Michigan drug kingpin hired a hitman to murder his half-brother, after which the kingpin himself murdered the hitman. He's sentenced to two concurrent terms of life imprisonment. Last year, he requested compassionate release, citing his heightened susceptibility to COVID-19. District court (Jan. 22, 2021): Agreed—release him immediately. Sixth Circuit motions panel (Feb. 5, 2021): The district court's order is stayed. Sixth Circuit merits panel (Nov. 3, 2021): The district court's order is vacated, and the court should reexamine the issue in light of current circumstances (including that the inmate has since been offered the vaccine and declined it). Dissent: The district court acted within its broad discretion.
- Seventh Circuit: Just a reminder that you need a really good reason to visibly shackle a criminal defendant in front of a jury, particularly if the prosecutor is giving closing argument and going on about how dangerous and unpredictable the defendant is. So try this guy again or let him go.
- Man goes hiking in Yellowstone National Park, looking for literal buried treasure. He gets lost and needs to be rescued by helicopter, after which he is charged with and convicted of reckless disorderly conduct, a misdemeanor. Tenth Circuit: And the magistrate judge did everything by the book, so the conviction stands. (Adding insult to injury, some other guy found the treasure a couple years later.)
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