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 any American actually own their home if all local officials need in order to seize it is to imagine an alternative use for the property that might generate more tax dollars? So asks IJ Attorney Bob Belden on the latest episode of the Eminent Domain Podcast, where the conversation centers on Onondaga County, N.Y. officials' plan to seize family homes to enlarge a "commerce park" that has sat vacant for decades.
- In which the D.C. Circuit channels the energy of your eighth-grade English teacher who knows that, deep down, you're better than this and is sad you won't put in the work to realize your potential. Except the "you" in this analogy is FERC.
- Allegations: There aren't a lot of players in the niche market for bankruptcy advising involving estates with assets in excess of $1 bil, so you can imagine that one such New York-based firm was pretty upset when it learned that a major competitor had been securing consulting gigs through shady pay-to-play dealings. The firm sues, alleging that they would have gotten some of those gigs if their competitor hadn't done a RICO. Second Circuit: Very possibly. Proceed to discovery.
- A Nassau County, N.Y. detective rolls his eyes, displays a distinct lack of interest in evidence presented to him that shows man he is arresting for domestic violence is in fact wrongfully accused. (The man misses his father's funeral while he's sitting in jail.) Jury: The detective is personally on the hook for $35k. Second Circuit: Nope, qualified immunity. The detective may not have had probable cause to arrest, but he had arguable probable cause. That said, the jury's $150k award against the county still stands. Concurrence: We really should have asked New York courts whether municipalities can still be held liable when the employee who caused the injuries in question is immune.
- Under federal law, a noncitizen minor whose parents have legally separated is entitled to derivative citizenship if the custodial parent becomes a naturalized citizen before the minor turns 18. USCIS: But we're not going to recognize your parent's divorce under Sharia law in Jordan because both sides didn't agree to the divorce. Third Circuit: A separation under Jordanian law is still a legal separation, and this guy has been entitled to citizenship since April 1982.
- Fifth Circuit: When the gov't defaults on a contract, it doesn't violate the Constitution. It violates the contract.
- Allegation: Shelby County, Tex. sheriff rehires jail officer who'd been fired for abusing inmates. The officer then sexually abuses several inmates, including the plaintiff, a pretrial detainee. Sheriff: Ah, but there's no allegation the officer was fired for sexually abusing anyone. Fifth Circuit: There's enough here to get past a motion to dismiss. No qualified immunity for the sheriff for negligent rehiring.
- In the future, entire federal courts casebooks will be written about the Texas SB 8 litigation. This chapter? Fifth Circuit: "Certified Questions to State Supreme Courts." Dissent: More like "Delay and Subterfuge on Remand."
- While Norwalk, Ohio man was at work, his wife was beaten to death in her bed. Nevertheless, he's convicted based on a blood-splatter experiment that ties his socket wrench to the murder. Yikes! The evidence tech who ran the experiment had previously been suspended for a "mental imbalance." Her file concluded she would "stretch the truth to satisfy a department" and that her "conclusions regarding evidence may be suspect." (None of which was disclosed.) After spending 22 years in prison, his conviction is overturned. He dies before he can be tried again; his daughters sue. District court: Qualified immunity! Sixth Circuit: No, the claims against the evidence tech can go forward (but not those against the tech's supervisors or the city).
- The Sixth Circuit notes that if you bamboozle FedEx into thinking you're a large vendor so that it gives you a shipping discount, the bamboozlement is still mail fraud even if FedEx had no written policy about giving discounts to vendors.
- Allegations: Deaf man suffers leg injury and goes to hospital, which repeatedly declines to provide a sign-language interpreter, leading to a communication breakdown that culminates in part of the man's leg having to be amputated. (To the one reader who just said to themselves, "hey, that sentence has a fused participle"—yes, yes it does. You passed the secret test, and Justice Scalia's ghost is giving you a paranormal slap on the back right now. Or maybe he's saying that, in this instance, it's better to be "ungrammatical instead of pedantic." Or maybe the sentence should just have been rewritten.) But long story short: The Sixth Circuit says the man timely sued the hospital and his case can proceed.
- In 1957, in Lambert v. California, the Supreme Court overturned the conviction of a Los Angeles woman who failed to register with the authorities as a convicted felon—as was required by local ordinance. That's because due process requires that defendants have some degree of notice that their conduct violates the law. Seventh Circuit: Which is a doctrine that hasn't been of much help to anyone since, not least this appellant, who got dinged $50 for parking on an unmarked, "secondary" snow route after three inches-plus of snowfall.
- Upset that the job of hooking refrigerated cargo containers to electrical supply was going to members of the International Brotherhood of Electrical Workers instead of members of the International Longshore & Warehouse Union, ILWU members shut down Terminal 6 of the Port of Portland for more than a year. The terminal operator sues, alleging an illegal secondary boycott (the Port, not the terminal operator, controlled the job assignments). They win at trial and are awarded $93.5 mil. Ninth Circuit: And we will not be taking an interlocutory appeal of that ruling, because the issues ILWU complains of are factual, not legal.
- In March 2020, Ventura County, Calif. officials ordered gun stores and firing ranges to close for 48 days to fight COVID-19. But the order allowed other places, like bicycle shops, to stay open. A Second Amendment violation? Ninth Circuit: First, the 1905 case Jacobson v. Massachusetts doesn't apply. Second, strict scrutiny does apply and the County fails it. Concurrence: Could have decided this under intermediate scrutiny. Other concurrence (by the judge who authored the majority opinion): My colleagues are awful. They'll probably reverse this en banc, and to "get a jump-start" I've written this draft of what they'll say. "Sort of a win-win for everyone." (Ed.: Click here for a probing look at Jacobson.)
- Butts County, Ga. sheriff orders signs placed in the front yards of all registered sex offenders in the county that read "STOP" and "NO TRICK-OR-TREAT AT THIS ADDRESS." Eleventh Circuit (with pictures): Well that's called compelled government speech, and it's unconstitutional.
- And in en banc news, the Ninth Circuit will not reconsider its opinion that a San Diego vaccine mandate for students 16 years and older that contains a variety of exemptions, but no religious exemptions, is religiously neutral. Dissental: SCOTUS has summarily rejected our approach to COVID restrictions on religious exercise five times. "With this case, our court is gunning for a sixth."
- And in amicus brief news, IJ is asking the Eighth Circuit to reverse dismissal of a 1983 action against Morton County, N.D. officers who purposefully shot a peaceful protester in the face with a lead-filled bean bag as he shielded women and elderly folks in the crowd. Faced with ill-defined criminal charges that required him to travel across the country for hearings, the protester accepted a pretrial-diversion agreement. But the district court said resolving the charges that way now bars him from suing the officers. To learn why that ain't so, click here. For more on the case, click here.
Since mid-November, San Bernardino County, Calif. sheriff's deputies have pulled over armored vehicles owned by Empyreal Logistics three times on flimsy pretexts—and seized cash twice. None of the stops resulted in tickets or arrests, and the sheriff has no reason to suspect anything untoward is going on. Rather, the sheriff is just going after Empyreal because of who its clients are: California-licensed marijuana businesses. This week, Empyreal and IJ filed suit against the sheriff—and also against federal law enforcement officials and agencies, who are prohibited by a congressional appropriations rider from interfering with state-legal marijuana businesses but who are doing exactly that in this case by, among other things, helping the sheriff try to forfeit the unlawfully seized cash via DOJ's equitable sharing program. Click here to learn more.