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 case alert: Can game wardens in Pennsylvania trespass onto private property without a warrant or permission or notice for whatever reason whenever they want? Some state statutes say pretty much yes, and under the Supreme Court's lamentable "open fields doctrine" the answer is pretty much the same. But now a pair of hunting clubs are asking if the Pennsylvania constitution might provide more protections against unreasonable searches than the federal Constitution. Click here to learn more.
- Allegation: Our family is regularly singled out for special searches whenever we travel, strongly suggesting the government has us on a special screening list. We travel a lot, and we'd like the federal courts to make them knock it off. D.C. Circuit: Yeah, that sounds an awful lot like a redressable injury. Case undismissed.
- Co-founder of group, Liberté Congolaise, that opposes the regime is arrested and never heard from again. The other co-founder flees the Democratic Republic of the Congo after repeated arrest attempts. Board of Immigration Appeals: Doesn't really seem like he has a reasonable fear of persecution. Send him back. Third Circuit: "The asylum law simply cannot be fairly read to require the removed asylum seeker to live in constant fear of arrest, imprisonment, torture, or death. It does not condemn one to live the rest of his/her life (or try to outlast a repressive regime) fearing every knock on the door—assuming those in authority there even bother with such conventions."
- Walmart: In an effort to comply with federal drug laws, our pharmacists regularly refuse to dispense doctor-prescribed opioids and we allow them to blacklist individual doctors who seem sketchy, which has led to lawsuits by doctors and threats from state regulators. At the same time, the feds are threatening us over the very same policies being too lax. Any chance we can get some clarity? Fifth Circuit: No. But good news—the feds are suing you now (in Delaware) so maybe you can hash it out with them in that other case.
- Indian asylee challenges denial of asylum, observing that the immigration judge—who smirked and rolled her eyes throughout counsel's presentation—has a nearly 100% denial rate over the last nine years. Fifth Circuit: Nothing to see here.
- O(SHA) snap! It's not often the panel of one circuit gets to review that of another, but that happened in the Sixth Circuit in the OSHA vaccine mandate litigation. What did the Sixth say about the Fifth in lifting the Fifth's stay on OSHA's emergency rule? That it "summarily concluded," had a "blanket conclusion," "fail[ed] to acknowledge," was "unadorned by precedent," and "failed to analyze any harm to OSHA." Dissent: Whatever the Fifth said, there's two meanings of "necessary," and this ain't the one from McCulloch v. Maryland. (SCOTUS will take a look.)
- Friends, if a police officer violates someone's constitutional rights, the municipality that employs the officer cannot be held vicariously liable simply by virtue of employing the officer. Plaintiff: But what if the officer violates my rights under the Americans with Disabilities Act (by, among other things, failing to adequately secure my wheelchair on the ride to jail)? Sixth Circuit (over a dissent): Same deal. No vicarious liability.
- Ordinarily, it would be tough to know who to root for in a fight between a homeowners association and the United States Postal Service, but since this Michigan HOA's complaint is about the indignity of receiving mail that is properly addressed but for the city being listed as Ypsilanti instead of Superior Township or Ann Arbor, we, along with the Sixth Circuit, are on the Post Office's side here.
- In which a "jurisprudential feast" turns to ashes in the mouth because the issues were not preserved for the Sixth Circuit's review.
- In evaluating whether to grant compassionate release, can a district court consider sentencing disparities resulting from nonretroactive changes in federal law? Sixth Circuit (Mar. 9, 2021): No(ish?). Sixth Circuit (May 6, 2021): Yes. Sixth Circuit (June 3, 2021): No. Sixth Circuit (Aug. 30, 2021): No. Sixth Circuit (Dec. 17, 2021): Yes. Dissent: No. (Michael Dreeben: Yes.)
- Allegation: Four forensic experts tell Quincy, Ill. officials investigating woman's death that their theory, murder, is not believable. So they lie to a fifth expert, who produces a report that inculpates the woman's husband (a prosecutor, professor, and school board president). He spends over two years in detention before being acquitted at a second trial where, unlike the first, the officials' communications with the experts are available to the defense. Seventh Circuit: His Fourth Amendment claims go to trial.
- Seventh Circuit: No need to disturb the $30 mil verdict against the feds for the inactions of a nurse practitioner at East St. Louis, Ill. clinic who failed to inform plaintiff of the gravity of his hypertension and how to manage it, and who failed to review lab results that showed advanced kidney disease.
- Wisconsin provides a transportation benefit to families who send their kids to private schools—but only one school of the same religious denomination in the same area qualifies. State: So families at one Catholic school in Milwaukee can't get the benefit, because there's already another nearby Catholic school where it applies. Seventh Circuit (2018): Which is fine. Seventh Circuit (2021, after stops at SCOTUS and SCOWI): Plaintiffs' school says it has a different understanding of what it means to be Catholic (and indeed the school is independent of the local diocese), and the inquiry into whether its beliefs and practices are really enough to make it a different denomination isn't something officials should be getting into. Plaintiffs are entitled to the benefit.
- Chicago police officers search suspected drug dealer's car, pocket $4k of the $18k they find. Yikes! It's the FBI's car and the FBI's cash, and FBI wiretaps capture (among other things) the officers' subsequent attempt at a coverup. Seventh Circuit: No need to reconsider the officers' convictions or their 6- and 7-year sentences.
- Manager at an Illinois White Castle franchise files suit under the state's Biometric Information Privacy Act, alleging that the company's practice of requiring employees to use a fingerprint-scanning system to access the computer system violates that act. White Castle defends that the case is time-barred—the statute of limitations should have started running from the first time she used the system following the law's enactment in 2008, not each time she used the system. Seventh Circuit: This is an important question that we will gladly let the Illinois Supreme Court sort out.
- If your summarist had been arrested for mooning employees at a Best Buy because of a dispute over coupons, he would not draw attention to that fact by suing a coupon company that posted an article about the event on its website days later. But then, it's clear that this Florida woman marches to the beat of her own drum. The Eleventh Circuit, for its part, is having none of it.
- Sex trafficking victims sue franchisors of several Atlanta-area hotels, alleging that hotel employees acted as paid lookouts and that the franchisors sent inspectors who would have recognized that trafficking was taking place. Eleventh Circuit: To be liable under the Trafficking Victims Protection Reauthorization Act, the franchisors needed to be participating in the trafficking, not merely turning a blind eye. Case dismissed. Concurrence: Sure seems like you could sue the hotel franchisees for participating, though.
- And in en banc news, the Eleventh Circuit (over a dissental) will not reconsider its decision that the feds have authority under Title 2 of the ADA to sue Florida for allegedly institutionalizing hundreds of medically fragile children unnecessarily.
Great success! This week, a federal judge ruled that North Wilkesboro, N.C. officials lacked a rational basis for prohibiting a homeless shelter that meets all of the town's extensive zoning requirements from opening. "The Board apparently believes—incorrectly—that it can say the magic words 'traffic and safety' and this Court will rubber stamp the classification no matter the facts," wrote U.S. District Judge Kenneth D. Bell. "But such deference cannot be an excuse for the Court to abdicate its duty to protect the constitutional rights of all people." Click here to learn more.