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 Bound By Oath podcast: Would you believe that public officials who PERJURE THEMSELVES on the witness stand are absolutely immune from Section 1983 claims for damages? It all started with a Ku Klux Klansman accused of a dognapping in Bloomington, Indiana in 1976 … .
And new on the Short Circuit podcast: Professor Fred Smith of Emory Law joins the panel and talks Younger abstention, and everyone scowls for dozens of minutes straight—until he gets to the part about how there's hope for the future.
- After 14-year-old is locked in psych ward at Boston Children's Hospital, a hacker ("The Hacker Who Cared Too Much") takes out the hospital's internet capabilities for a few weeks in protest. First Circuit: The 246 days between the hacker's arrest and indictment do not run afoul of the Speedy Trial Act. His conviction and 10-year sentence stand.
- After receiving a tip from the operator of a storage facility, Delaware police get a search warrant and find three kilos of marijuana, along with scales and packaging material. The marijuana's owner is charged under the federal "crack house" law, which prohibits renting or using property "for the purpose of manufacturing, distributing, or using" drugs. Owner: I was only "storing" drugs there, and that's not listed. Third Circuit (en banc): Nice try, but your pattern of visits and the presence of scales and baggies makes it pretty clear you were "distributing." Your sentence was wrong, though, so we send it back down. Concurrence: The sentence was indeed wrong, and here's why the rule of lenity is the solution.
- Twenty-eight-year-old Texas man dies of a seizure. Insurance company to widow: no life-insurance proceeds for you; we think your husband inaccurately said he wasn't a smoker when he applied for the policy. Widow sues and submits affidavits from herself and from her sister-in-law, stating that they never saw her husband smoke. District court: Those affidavits are "self-serving" and can't create a fact issue for trial. Fifth Circuit: Well, most testimony by parties is "self-serving" in one way or another, since the party wants to win their case. To trial the case must go.
- Let's say you live in Texas and hire a Florida/Delaware home-security company to install an alarm system in your house. And it turns out the Texas-domiciled employee of that company has a penchant for spying on you (and hundreds of other customers) through the alarm system. First off, yikes. Second, can the federal courts hear the company's demand to compel arbitration in your resulting lawsuit—on the theory that the arbitration agreement is between
non-diversediverse parties (the company and you, the homeowner)—even though the creepy now-former employee shares your state of citizenship and is also a party to the suit? Fifth Circuit: Yes. (For his part, the employee was sentenced to 52 months' imprisonment.)
- Man: I was inebriated when I confessed to Akron, Ohio murder. I shouldn't have been convicted based on that. Sixth Circuit: You weren't inebriated. And even if you were, drunk confessions don't violate due process (unless maybe the police forced you to get drunk).
- Allegation: Redford Charter Township, Mich. work-release program supervisor sexually assaults female probationer. Can she sue the program's other supervisor, who connived with his colleague to separate her from the group, against policy, and told his colleague to "have a good time"? Sixth Circuit: Indeed she can. The substantive due process right to bodily integrity protects against sexual assault by state actors, as well as deliberate indifference to sexual assault, and this was clearly established. No qualified immunity.
- The Brady Act requires a background check of someone making a gun purchase but makes an exception if the buyer has a qualifying state-issued permit. Some state permit systems qualify; some don't. ATF used to think Michigan's did, but then claimed the state got kind of sloppy. Dude with a Michigan permit tries to buy a gun and is denied. Dude brings APA claim, loses in district court. Sixth Circuit: Dude has a point.
- Michigan prisoner asks for accommodation to allow him to properly practice the Ifa religion. Receiving no response, he asks again. And again. And ends up doing so five times over six years. Constructive denial? Sixth Circuit: Oh yes. Lawsuit can now proceed in district court, although watch out for qualified immunity.
- Terminally ill prisoner sues hospital and doctors who contract with Illinois to provide prison healthcare, in this case cancer diagnosis and treatment. Claims both negligence and an Eighth Amendment violation. Jury finds for prisoner, including $10 mil in punitive damages (reduced to $7 mil by the trial judge). Wow, that's a lot! Does it hold up at the Seventh Circuit? No. Expert reports from another matter were either improperly introduced or aren't enough for a Monell claim. Negligence finding stands, but no punitive damages. Dissent: This is all about 12 pages in one of those reports.
- Hospitals, just five days before the federal government's new rules for allocating donated kidneys are scheduled to go into effect: These rules are illegal, and we need a preliminary injunction! Eighth Circuit: You waited too long to sue. And you're wrong. But you at least should have been wrong earlier.
- How consensual is a police encounter when the officer shines a spotlight through a driver's car window at 10:27 p.m., asks for her (and her passengers') identification, and asks, "What's going on? Run me through. Something's going on right now"? Eighth Circuit: Consensual enough to not implicate the Fourth Amendment. And in any event, driving into a school parking lot in the middle of the night and acting fidgety is suspicious enough to merit an investigatory stop.
- Third parties in Montana that want to hold primary elections have to go through a byzantine process of collecting signatures from at least one-third of the state's legislative districts, and the number of signatures they need from those districts is indexed to the percentage of the total votes cast for the most recent successful gubernatorial candidate. The Montana Green Party challenges the requirement under the First Amendment and the Equal Protection Clause. Ninth Circuit: No First Amendment problem, but it does violate equal protection. (Ed.: For those interested in this issue, Richard Winger's Ballot Access News has long been the best online resource around.)
- John Doe plaintiff from California, who previously pleaded guilty to mortgage fraud crimes, has a beef with the FBI and the DOJ: Even though he's served his time, the agencies' websites still have publicly available press releases that identify his role in the scheme. That, he alleges, violates the Privacy Act, the constitutional right to privacy, the Eighth Amendment's bar on cruel and unusual punishment, and the Administrative Procedure Act. Ninth Circuit: It does none of those things—the first claim is untimely and the next three are meritless. Case dismissed.
- WhatsApp and Facebook sue an Israeli company for sending malware through WhatsApp's server system to mobile devices. Company: Anything we did, we did on behalf of a foreign government customer, which means we're protected by the Foreign Sovereign Immunity Act. Ninth Circuit: "The law governing this question has roots extending back to our earliest history as a nation, and it leads to a simple answer—no. Indeed, the title of the legal doctrine itself—foreign sovereign immunity—suggests the outcome."
- The Prison Litigation Reform Act requires prisoners to exhaust available administrative remedies before they may file a federal lawsuit. In this case—in which a prisoner alleges he was physically and sexually assaulted by guards—the Ninth Circuit reminds us that if prison officials don't response to prisoner grievances, then whatever else such a remedy may be, it is surely not "available." Dissent: But the guy filed a second grievance that talked about the first grievance, un-exhausting his previously exhausted grievance.
- So it turns out that if police shoot and kill someone and a city council member calls it murder, the officers who shot and killed someone can sue that council member for defamation. It'll be up to a jury to decide whether calling someone who indisputably killed someone else a murderer is defamatory. So holds the Ninth Circuit in a case about the 2016 some-people-have-called-it-murder-but-we-are-making-no-definitive-statement-on-the-matter of Che Taylor at the hands of Seattle Police.
- Salt Lake City officer stops bicyclist for riding without a red taillight, discovers he has outstanding warrant. The cyclist flees on foot and turns toward the officers and raises one arm. The officer shoots him dead. District Court: Cyclist was standing in a threatening posture and officer thought he had a knife. Qualified immunity. Tenth Circuit: That is way too much weight to give to three seconds of ambiguous body-cam footage, and the well-pled complaint says he was not armed. No qualified immunity.
- Allegation: Woman spends five months in jail after Atlanta police lie about, among other things, drug identification tests that indicated they hadn't found cocaine inside a stress ball in her purse. (It was sand.) Eleventh Circuit: To a jury this must go. No qualified immunity. And the state-law defense of "official immunity" doesn't shield the officers either; a jury might think they acted with actual malice.
- And in en banc news, the Sixth Circuit will reconsider its decision affirming the denial of a preliminary injunction in a case brought by a Catholic school and two parents with children enrolled at the school, challenging a state policy that requires everyone over the age of five to wear a mask in indoor public settings. One judge dissented from the original panel opinion, arguing that the case should be sent back for reconsideration in light of recent Supreme Court rulings.
Earlier this month, Maine's voters adopted an amendment to the state's constitution protecting the "natural, inherent and unalienable right to food" including saving and exchanging seeds and "the right to grow, raise, harvest, produce, and consume the food of their own choosing." Those pushing for the amendment's adoption wanted to protect the rights of people to go "against the grain" when it comes to what we eat and who we get it from. So now that it's explicitly in the constitution, what does that mean for laws that stymie, say, growing your own vegetables or raising your own chickens? Over at our own little corner of the blogosphere, IJ's Anthony Sanders discusses how the amendment might affect Mainers and what the state's courts may have to say about it. Click here to read more.