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.
Does the Fourth Amendment permit the search and seizure without probable cause of two compliant children, handcuffed and at gunpoint, even after the children have identified themselves to the seizing officer and been independently identified by their parents? Next Friday, January 21st, the Supreme Court will consider whether to take up that question in the case of Pollreis v. Marzolf. Click here to read IJ's cert petition. And click here to read a very fine amicus brief on the common law of arrest from the DKT Liberty Project.
New on the Short Circuit podcast: A smelly traffic stop and the Oregon Supreme Court rejects the automobile exception to the Fourth Amendment's warrant requirement.
- Young El Salvadoran man is arrested in East Boston on suspicion of being a member of MS-13, despite having no prior arrests or ever having been observed participating in any gang activity. He applies for asylum, but the immigration judge rules against him based on information from the gov't's Gang Assessment Database, which describes man as a "verified" member of MS-13. The evidence? Mostly the fact that he lived in East Boston and hung out with other young El Salvadorans. First Circuit (en banc): That's not enough. He gets a new hearing. Dissent: Well we think he's a great big liar.
- Does Rhode Island violate the constitutional rights of schoolchildren throughout the state by failing to provide them with enough civics education to be responsible citizens? No, says the First Circuit. But did the First Circuit violate your editor's constitutional rights by referring to the Privileges or Immunities Clause of the Fourteenth Amendment as the Privileges and Immunities Clause? That question remains unresolved.
- The NLRB goes after New Jersey salon owner for unfair labor practices. She settles, and as part of that settlement is required to text a remedial notice to her employees. Salon owner: Okay, I emailed the notice. NLRB: EMAIL?! The settlement is void! Third Circuit: Settle down, guys. The employees got the notice, and that's all anyone really cares about.
- Millersville, Pa. college student gets a black eye from her boyfriend (who doesn't attend the school) in her dorm room. The RA calls campus police, who escort him off campus (but do nothing further), and the RA files a report with admins (who do nothing). The student's roommate tells her mother about the situation, and the mother calls the school's police, counseling dep't, and admins (who do nothing). A few months later, he kills her in her dorm room after a frat party. Third Circuit: And a jury should consider the girl's parents' claim that the school's failures violated Title IX.
- Fifth Circuit when ordinary litigants relegate arguments to footnotes: "Arguments subordinated in a footnote are 'insufficiently addressed in the body of the brief,' and thus are waived." Fifth Circuit when gov't defendants relegate Younger abstention to a footnote and raise the issue on appeal only when invited to do so at oral argument by the court sitting en banc: WILDCARD—"We conclude that the Younger issue has not been waived." So a limited remand is in order for the district court to consider Younger in the first instance. Also, our precedent on abstention, which would appear to cut dispositively against the gov't? That's "not binding" on remand; "we give the district court authority on remand to reach the result it considers appropriate even if it is inconsistent with any of this court's precedent." Dissent: Or we could, y'know, not make the gov't's arguments for it. (We at IJ have said much the same thing, with much the same success (so far).)
- After Newport, Tenn. officer body-slammed him to the ground (and county officials refused to turn over evidence revealing the officer's identity), man files suit against "John Does." More than a year after the incident, he amends the complaint to name the guilty officer. Does Tennessee's one-year statute of limitations time-bar his claims? Sixth Circuit: Sure does. The clock started running the moment of injury, amendments to name new defendants don't relate back to the original filing date, and we can't review the district court's decision not to toll the SOL cuz it wasn't raised on appeal.
- A class of prisoners sue Illinois prison officials for failing to provide constitutionally adequate mental health care and get a detailed settlement. But the state fails to live up to the agreement in all kinds of ways. So it's back to court to enforce the agreement, which the district court does. Seventh Circuit: Well, actually, under the Prison Litigation Reform Act they can only enforce the settlement if violating it is itself an Eighth Amendment violation, and although things still look kinda bad, the state's done a few things to comply. Dissent: It only did that stuff at the last minute. Let the district court do its thing.
- A jury finds then-17-year-old guilty of robbing a pharmacy but acquits him of fatally shooting a confederate in the back after the robbery. But wait! At sentencing, the district judge determines that the teen more likely than not committed the murder and enhances his sentence accordingly. Seventh Circuit: Just as the Supreme Court intended. But maybe there is some interest above in reconsidering?
- Allegation: Chinese Ph.D. student at UCLA, months away from graduation, breaks off his engagement when he discovers his fiancée has been cheating on him. She later shows up at his office pounding on door and demanding return of some property (he asks for the return of the engagement ring, which she informs him she threw into the ocean). When she won't let him leave his office, he pushes past her. She files a Title IX complaint alleging that she is a student (she isn't) and that he broke her rib (he didn't). He's suspended for two years, a punishment the board of regents ultimately reverses, but not before he loses his student visa. He sues, alleging the university discriminated against him because of his sex. Ninth Circuit: Certainly a plausible enough inference for this case to go forward.
- Allegation: To fund campaign to make Denver sheriff an elected rather than an appointed position, police union representing Denver sheriff's deputies seeks to automatically deduct a "special assessment" from its members' paychecks. But the sheriff refuses to deduct the funds! A violation of the First Amendment? Tenth Circuit: Denver's city charter doesn't give the sheriff any authority over payroll deductions, so it doesn't matter whether or not he caused the funds not to be deducted.
Attention law school-bound undergrads: Come work at IJ this summer! The Arthur D. Hellman Fellowship in Public Interest Law is an unparalleled opportunity to gain exposure to the inner workings of a leading national public interest law firm before entering law school. The fellowship offers a $6,000 stipend for the 10-week program, and generally runs from early June through early August. The program is named after Arthur D. Hellman, Professor Emeritus at the University of Pittsburgh School of Law and one of the nation's leading academic authorities on the federal courts as well as an expert and author on the First Amendment. Apply here.