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 Short Circuit podcast: Foreign divorces & naturalization in the Third Circuit and ineffective assistance of counsel in the Fourth.
- Supreme Court short-lister Judge Ketanji Brown Jackson issues her debut opinion on the D.C. Circuit, concluding that the Federal Labor Relations Authority acted arbitrarily and capriciously when it changed the threshold at which certain federal employers are required to collectively bargain with their employees' union from a de minimis threshold to a substantial-impact threshold.
- And Supreme Court short-lister Judge Ketanji Brown Jackson issues her encore opinion on the D.C. Circuit, concluding that the Republic of Iraq did not waive its sovereign immunity when it participated in an eight-day bench trial on a contract dispute with an American defense contractor. But the contractor is not lost yet! Judge Jackson raises the possibility that an exception to the Foreign Sovereign Immunities Act may apply—an issue to be decided by the district court on remand.
- Would you be interested in knowing what the CIA's Chief of Medical Services thought about his office's participation in the CIA's detention and interrogation/torture program? Boy we would. But, per the Second Circuit, all of the interesting stuff is exempt from the Freedom of Information Act.
- Sexually explicit material was once "ubiquitous" inside Connecticut prisons, leading to problems like "gunning" (which you'll need to look up for yourself). But a 2012 rule change put a stop to that, banning most such materials (with exceptions for materials that are more artistic, educational or scientific than prurient). Plaintiffs: You could just discipline people for gunning. Second Circuit: No constitutional problems found.
- The gov't doesn't have a duty to keep people safe, unless it first puts them in harm's way. Third Circuit: And that's exactly what a nurse at a Morris Plains, N.J. state-run psychiatric hospital did when she left a severely bipolar, violent patient alone with his mother, leaving the mom vulnerable to the attack that followed. No qualified immunity.
- Man living in rural West Virginia holds his daughter and grandkids hostage, swings a shovel at troopers on the scene, threatens to shoot them, and takes off running. State trooper, who now claims self-defense, fatally shoots the man . . . in the back. Fourth Circuit: If the trooper is telling the truth, this may not be a constitutional violation. But a gunshot to the back raises some questions about what really happened, so to the jury it goes. (Also, sorry plaintiff, but we don't have the power to overturn QI altogether.)
- Under Virginia law, an 18-year-old who has sex with a 14-year-old can one day (perhaps) be removed from the state's sex offender registry, but an 18-year-old who merely propositions a 14-year-old for sex is stuck on the registry for life. Weird? Yes. Unconstitutional? Nope, says the Fourth Circuit: Virginia's lawyers seem unable to come up with a rational justification for this law, but don't worry, we've got them covered.
- Descendant of Jewish art-gallery operator sues, among others, the Ministry of Education, Culture & Science of the Netherlands, the Cultural Heritage Agency of the Netherlands, and several private and municipal museums in the Netherlands, seeking return of 143 pieces of artwork stolen from his ancestors by the Nazis. (More precisely, the allegation is that the pieces were sold to the Nazis under duress, as, for example, when Hermann Göring popped by the family's gallery in The Hague with armed guards.) District court: The ministry and the agency are immune under the Foreign Sovereign Immunities Act and as for the museums, the U.S. District Court for the District of South Carolina is not the proper venue. Fourth Circuit: The FSIA ruling was spot-on, and on appeal, the plaintiff didn't really challenge the venue ruling, so . . . affirmed.
- A Virginia inmate, who is an observant Muslim, asserts that his religion requires that he use scented prayer oil obtained from a Muslim vendor. The prison, however, will only allow him to purchase the oil from the commissary, which also sells swine and idols to other inmates—which the inmate says violates his religion. Fourth Circuit (over a dissent): The gov't's interest in preventing contraband overrides your religious-liberty interest in obtaining oils from an acceptable vendor.
- In 1995, Texas forbade publicly traded corporations from selling liquor at retail. Exempt, however, are hotels and any publicly traded corporation with a pre-1995 permit (or application) to retail liquor. So what happens when an exempt corporation wants to sell itself to a non-exempt corporation? Who's the holder of the retail liquor license? Sounds like a question for the Texas Supreme Court, says the Fifth Circuit.
- Facing a budget shortfall of $35-40 mil and with facilities requiring major repair and upgrades, Michigan State University eliminated its men's and women's swimming and diving teams. Members of the women's team sued under Title IX, seeking a preliminary injunction that would require the university to continue its women's swimming and diving team. District court: The participation gap between male and female athletes is less than 2%—too small to make a fuss over. Sixth Circuit (over a dissent): The percentage isn't as important as the raw number, which may be as high as 35, and that's enough to field a team. So take another look at this.
- Man represents himself at trial of brutal assault of his girlfriend. Trial does not go his way. The victim shares Facebook screenshots of the defendant saying things like, "I committed domestic violence"; he testifies that he's never kept a woman against her will, which the gov't rebuts with contrary testimony from his previous significant others; and he's removed from the courtroom after erratic behavior and outbursts. He's convicted and sentenced to 864 months in prison. Sixth Circuit (over a dissent): New trial (and in front of a new judge). Although the Sixth Amendment allows people to represent themselves, waiver of their right to counsel must be done knowingly and voluntarily. The defendant here was not adequately warned of the risks to knowingly waive his right to counsel.
- Chicago lawyer posts on Facebook, "Did Trump put Ukraine on the travel ban list?! We just cannot find a cleaning lady!" When challenged, the lawyer defends his comments with equal tact. Seventh Circuit: "As sometimes happens on social media, things escalated quickly." But the torrent of one-star reviews left on the lawyer's Facebook, Yelp, and Google pages were not defamatory per se.
- Physician: Dear DEA, I would like to administer psilocybin to a terminally ill patient to help him with anxiety and depression. How can I go about doing that legally? DEA: There are no exceptions to the law that would allow you to do that. Physician: In that case, I'm suing you. Ninth Circuit: The DEA's "informational" letter was not a final agency action. All it did was tell you the law doesn't allow the thing you want to do. Case dismissed.
- A Nevada prison allows inmates to use scented oil during religious services but requires the oil be kept in the chapel. The only oil inmates can possess in their cells is unscented baby oil. Inmate: This regulation forces me to pray with oil without any religious significance for 34 of my 35 weekly prayers. Ninth Circuit: Which is unacceptable.
- Remember when the Trump administration repealed net neutrality and everyone freaked out and said it was the end of the internet and you'd have to pay a dollar for every tweet you sent and then nothing happened? Well, in the wake of that decision, California chose to protect its citizens from the internet dystopia we see around us today by enacting essentially the same rules. Ninth Circuit: And those rules are not preempted by federal law, since the feds declared they didn't have authority to make rules for internet service providers. Concurrence: Also, stop appealing denials of preliminary injunctions and just go to trial. You're wasting your time and ours.
- In Oakland, a landlord who wants to use a rental property as his own home after the tenant's lease expires must nonetheless pay the departing tenant a hefty "relocation fee" for the privilege. Is this a taking? An exaction? A physical occupation? Ninth Circuit: The phrase you're looking for is "totally cool." This regulation is totally cool, and your constitutional claims fail.
- A mother is convicted of murdering her 4-year-old on the basis of a detective's testimony that she had confessed. There were no tapes, witnesses, or any other direct evidence linking her to the crime. She's sentenced to death. Ninth Circuit (2013): Prosecutors' failure to disclose the Phoenix detective's history of repeatedly lying in court was a textbook Brady violation. Habeas granted. Arizona Court of Appeals (2014): Egregious prosecutorial misconduct triggers double jeopardy, thus barring retrial. The mother walks free after 22 years on death row; she then sued the detective. Ninth Circuit (2022): Egregious actions all around—this time by the woman. She and her lawyers destroyed evidence and obstructed discovery. Dismissal with prejudice is the correct result.
- And in en banc news, the First Circuit (over a pair of dissentals) will not reconsider its decision denying qualified immunity to Orono, Me. officers who entered the curtilage of a suspect's home (and made quite the racket to roust him) without a warrant or a good enough reason to enter warrantlessly.
- And in more en banc news, the Fifth Circuit will not reconsider its decision denying qualified immunity to a Dallas officer who knelt on a subdued, restrained man who then died of asphyxiation. (QI also denied to other officers who stood around joking.)
- And in further en banc news, an update to an update: Tennessee enacted two sets of abortion bans in 2020, one prohibiting pre-viability abortions, and the other prohibiting abortions when the reason is the fetus's sex, race, or Down syndrome diagnosis. A panel of the Sixth Circuit upheld a preliminary injunction of the bans. The en banc court voted to rehear it back in December. This week, the en banc court issued an order staying the second portion of the injunction pending the appeal (meaning the law prohibiting abortions on the basis of sex, race, or Down syndrome can go into effect). Dissent: The en banc court is refusing to hear the case until SCOTUS issues its decision in Dobbs (but without saying so publicly). "[T]hese stay-and-delay tactics subvert the normal judicial process, harming both the substance of our ultimate decision and our court's legitimacy."