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: With neither Congress nor the Supreme Court moving the needle on qualified immunity reform, these days all the action is in state legislatures. Special guest Alex Reinert of Cardozo Law joins the show to talk about civil rights enforcement under state law.
- An alleged sensitivity to radio waves can give (some of) these plaintiffs standing to challenge an FCC regulation governing placement of radio antennas, says the D.C. Circuit, which means we have jurisdiction to say their arguments are bad and wrong and lose.
- In January, a district court in Texas issued a nationwide preliminary injunction against Executive Order No. 14043, which directs federal agencies to require their employees to be immunized against COVID-19. The government moved for a stay pending appeal. Fifth Circuit (motions panel): We'll just let the merits panel decide whether they want to act on that. Dissent: We should stay the entire injunction; at an absolute minimum, we should stay it as to people who aren't plaintiffs or members of plaintiff organizations.
- "Fuck the Police," "fucking thugs with badges," "six bitch ass fucking pigs." Indelicate phrasing? Quite possibly. But constitutionally protected speech? Very clearly. So no qualified immunity for the cops who arrested a potty-mouthed Ohio fairgoer, holds the Sixth Circuit. The case goes to trial. [Ed.: We would've hyphenated "bitch ass," but reasonable minds can differ.]
- Kentucky man kidnaps his two-year-old daughter from custodial grandparents. When confronted by police did he fight back with "super-human" strength and charge one of the officers, leading police to shoot and kill him? Or did police brutally beat him before shooting him unnecessarily? Sixth Circuit: Most of the witnesses say the former, but there's one who says the latter, and that's enough to take this to a jury.
- Ben Kramer almost certainly had a more adventurous 1980s than you did. That decade saw him become: a national champion in offshore powerboat racing; a drug kingpin who imported some 500k pounds of marijuana via barges, freighters, and container ships; a murderer of his former idol (the millionaire inventor of the Cigarette speedboat and pal of GHW Bush); and an inmate serving a life sentence made famous by his failed helicopter-escape attempt. (If you had a wilder decade, pray tell.) As part of his convictions, the courts ordered him to forfeit $110 mil and then work to satisfy the judgments. Kramer: You took too much, give it back. Seventh Circuit: No.
- Sufficiency-of-the-evidence challenges to a criminal conviction are notoriously hard to win. But not impossible, as shown by a California man who persuaded a unanimous Ninth Circuit panel to vacate his convictions for drug-dealing-related crimes. The evidence certainly showed that the man was addicted to methamphetamine, the panel concludes, but not that he had anything to do with selling it.
- SCOTUS-watchers of 2020 may recall United States v. Sineneng-Smith—where the Supreme Court (sua sponte) admonished the Ninth Circuit for sua sponte holding overbroad the federal statute that makes it a crime to encourage aliens to stay in the U.S. illegally for purposes of financial gain. Ninth Circuit (2022): Now that we have a case where the issue is fairly presented, we again hold that the statute is overbroad.
- Lawsuit alleges that the Department of Education unlawfully delayed making decisions on student loans during Betsy DeVos's tenure as Secretary of Education. Can the plaintiffs compel DeVos to sit for a deposition? Ninth Circuit: The plaintiffs have shown that the department acted in bad faith, but they also needed to show that they can't get the information they want any other way. So no deposition. Dissent: No reason not to require a former cabinet official to testify. It's not like she's busy.
- California gov't officials challenge law that prohibits public employers from deterring or discouraging public employees from becoming or remaining members of an employee organization. A First Amendment violation? Ninth Circuit: No need to decide that, because the officials don't have standing. The restriction doesn't apply to anyone in their individual capacity; it restricts speech only to the extent it is attributable to the government employer.
- The city of Boulder, Colo., as well as the counties of Boulder and San Miguel, sue energy companies for damages caused by climate change. The energy companies would sure love to have the case heard in federal court but, alas, the Tenth Circuit holds that none of the six arguments they advance are enough to support removal.
- Oklahoma inmate sues prison for violating the Eighth Amendment by allegedly providing inadequate nutrition (telling the inmate they did "not have the budget to fix" the spoiled food, cockroach infestations, and rationed portions) and unhygienic facilities (11 showers for 132 inmates, one toilet for 32 inmates). The district court dismisses the case for failing to allege constitutional violations. Tenth Circuit (2019): Undismissed. District court: Okay, but now he loses for failing to exhaust. Tenth Circuit (2022): Once again, the man's case can continue.
- In its 2020 decision Tanzin v. Tanvir, the Supreme Court unanimously held that the Religious Freedom Restoration Act (RFRA) allows individuals to sue federal officials who substantially burden religious exercise. Notably, the Court rejected the gov't's request for a policy-based exception to liability under RFRA, explaining that such policymaking would invade the role of Congress. Tenth Circuit: Yeah, but the official can still invoke qualified immunity—a judicially created, policy-based exception to liability.
- Georgia is a stand-your-ground state in a right-to-bear-arms country. So, when your wife spots a prowler outside your home at midnight, it's well within your rights to take a pistol and investigate. But if the prowler turns out to be a police officer crouching in the darkness, who then shoots you dead in your driveway without ever announcing himself, he's going to get qualified immunity. At least in the Eleventh Circuit.
- Allegation: Suspecting a Lamar County, Ala. student has marijuana—quelle horreur—two female school staffers strip search her, twice, while she's on her period, once in front of an open window to a school hallway. Eleventh Circuit: That's going to a jury. If true, no qualified immunity.
If you want to teach piano lessons in your living room in Jacksonville, Florida, there are 19 steps—like obtaining a conditional use permit—the city requires you to take first. Plus, it'll cost you over $1,500. In the 20 large and medium-sized cities that are the focus of a new IJ study, Barriers to Business: How Cities Can Pave a Cheaper, Faster, and Simpler Path to Entrepreneurship, you'll have to pay an average of 13 different fees for permits and licenses totaling more than $5,300 if you want to open a restaurant. Around the country, small businesses must contend with complex bureaucratic approval processes, high fees, and unnecessary delays that do nothing to protect public health and safety. But friends, there's a better way, and the study makes lots of city-specific recommendations for reform that local leaders can and should adopt right away.
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