The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Diet speech, judicial speech, and petition-related speech.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Friends, civil forfeiture is a plague on honest folks in many a jurisdiction around the country. But Indiana may be the rottenest, thanks to a unique feature of state law that allows counties to deputize private-sector lawyers to act as prosecutors—and pocket a cut of whatever they forfeit. Indeed, nearly half of the state's 92 counties employ such for-profit prosecutors. Head on over to Bloomberg Law to read about IJ's class action challenge to the law.

  • Man, who has a felony record and thus cannot possess a firearm, shoots himself in the leg. Haverhill, Mass. police get a warrant to search his home and find guns. But wait! The warrant referenced the second floor, and the man lives on the third. Suppress the evidence? First Circuit: Nope. The warrant may have referenced the second floor, but it wasn't exactly "an exemplar of grammatical precision." Officers could have thought they had the go-ahead to search the third.
  • Pennsylvania has a law that requires that petition circulators who gather signatures to place candidates on the ballot be Pennsylvania residents who are members of the same political party as the candidate. Two out-of-state petition circulators from the 2020 election sue, alleging First Amendment violations. District court: The law is unconstitutional, as applied to you, and only for the 2020 election. Third Circuit: We can expand that to the both of you for future elections … but nobody else!
  • Coast Guard lieutenant is arrested on drug and gun charges. Further investigation of his computer reveals he is a white nationalist who had penned a manifesto in which he discussed his dreams of "a way to kill almost every last person on the earth." His browser history also reveals an obsession with the manifestos of mass killers, the manufacture of explosives, precision long-distance shooting, and the whereabouts of various federal officials. Fourth Circuit: More than enough evidence to conclude that his illegal arsenal was acquired with the intent of promoting an act of terrorism, justifying a sentencing enhancement.
  • In this Fourth Circuit case, the court considers whether a criminal defendant who entered a conditional guilty plea may challenge the district court's denial of a suppression motion (he can, over a dissent). But the most important lesson from the case is that, when approached by Richmond, Va. police who said "Yo! Let me talk to you real quick," the defendant said "Nah" and kept walking, which is the correct response.
  • Ten years ago, West Virginia property owners brought a trespass action against a pipeline company. Seven years ago, a jury found in their favor. And, finally, just this week, the Fourth Circuit ruled that they are entitled to . . . a remand to see if they can present any evidence of damages.
  • In 2021, South Carolina enacted a "fetal heartbeat" law, which effectively bans abortions after the sixth week of pregnancy. Abortion providers sue. District court: The law is unconstitutional under Supreme Court precedent. Gov't: Of course this law is unconstitutional, but the providers lacked standing. Fourth Circuit: The Supreme Court has said abortion providers have standing, so they have standing. (For severability junkies, there's also some stuff about severability in there too. Bon appétit!)
  • Allegation: Texas prison officials imposed a harsher disciplinary sentence on prisoner who'd previously filed a grievance against one of the officials on the disciplinary committee. District court: Officials' motion for summary judgment granted. Fifth Circuit (2016): Reversed. District court: Officials' motion for summary judgment granted, again. Fifth Circuit (2022): Reversed in part. The district court must consider all of the prisoner's arguments, and he may well be entitled to punitive damages.
  • Former Chief Magistrate Judge in Detroit allegedly warned fellow state-court judges that their practices violated state and federal law and, later, that the ACLU was considering filing a lawsuit. The ACLU sues, and the judge is fired. First Amendment retaliation? Sixth Circuit: Nope. Her speech was made in her official, not personal, capacity, so no claim.
  • In which the Sixth Circuit gently reminds Saginaw County, Mich. (and 26 other Michigan counties) that sovereign immunity is restricted to, well, sovereigns. So no getting out of a class action alleging that the counties have a habit of foreclosing on, for instance, homes worth $50k because of a delinquent $3k tax bill and then keeping the surplus.
  • In which a Chicago police officer guesses the address of a suspected felon-in-possession (based off an informant's imprecise information), gets a search warrant for the wrong address, ends up searching the correct address, causes the target to spend four months in jail, but ultimately has the evidence suppressed because the warrant sought to search somewhere else. Seventh Circuit: There's evidence that you needed to do better, officer. Some of the claims about this are going to trial.
  • In which Chicago police officers misunderstand the address of a suspected drug dealer, get a search warrant for an ambiguous address, end up searching the wrong address, then destroy footage that might have explained what happened. Seventh Circuit: There's no evidence you did wrong, officers. None of the claims about this are going to trial.
  • What do you call it when someone gives you advice about your diet? Annoying? Intrusive? If you're this Eleventh Circuit panel, you call it the "professional conduct of dieticians" outside the protection of the First Amendment. (This is an IJ case.)

As you've probably gathered, IJ doesn't take too kindly to barriers to work. But did you know that even state governments think a lot of them are nonsense? For our latest report, Too Many Licenses?, IJ collected nearly 500 government studies of proposed licenses, known as "sunrise reviews." No surprise: The vast majority of proposals were backed by groups with an interest in fencing out competition. Perhaps a surprise: The vast majority of government reviews saw through this and said "no thanks" to licensing. The lesson? With or without sunrise reviews, legislators everywhere should greet licensing with healthy skepticism. Curious readers can find the report here. Curiouser readers can learn what sunrise reviews say about 200+ occupations in our sunrise archive here.

NEXT: "Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases)" Now in @HarvardJLPP

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  1. Officers could have thought they had the go-ahead to search the third.

    And? How does their inability to understand the warrant expand its scope? That's nuts.

    1. Because the warrant was not

      "an exemplar of grammatical precision." Officers could have thought they had the go-ahead to search the third.

      The real question is why the judge who signed off on the warrant, and/or the warrant author, were not held accountable.

    2. "What do you call it when someone gives you advice about your diet? Annoying? Intrusive? If you're this Eleventh Circuit panel, you call it the "professional conduct of dieticians" outside the protection of the First Amendment. "

      So if I say, "You seem to be putting on some weight there. Maybe you better try a salad for lunch," I can be arrested for practicing diet advice without a license.

    1. As usual, Powerline mis-states something in order to generate some clicks. It was not Virginia, but the Fairfax County Public Schools. I think this case has been discussed here on VC before. It involves changes to the admissions standards of a highly esteemed school in the system which reduced the percentage of Asian students from 70% to 50%.

      1. This was the second try by the school board, too, as the first one was even more openly racist.

  2. In the South Carolina abortion case, the Fourth Circuit panel writes:

    The Act’s central focus is a provision making it unlawful to perform, induce, or attempt to perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the human fetus the pregnant woman is carrying and whose fetal heartbeat has been detected,” absent exceptions for medical emergencies, rape, and incest. (Emphasis added)

    In Fulton v. Philadelphia the majority opinion states that:

    A law is not generally applicable if it invites the government to consider the particular reasons for a person's conduct by providing "'a mechanism for individualized exemptions'" (quoting Smith.

    In U.S. Navy Seals 1-26, et al. v. Biden one of the plaintiffs sought a religious exemption from the Navy's vaccine mandate on account of "direct, divine instruction not to receive the vaccine."

    As I see it, in an attempt to protect religious opposition to vaccine mandates, the courts are inadvertently creating a legal rationale to subvert abortion restrictions that provide for health/rape/incest exemptions. If an individual claims they have received direct, divine instructions to have an abortion (or some other religious belief compels them to obtain one), and the abortion restriction in question allows for individualized exemptions (such as the usual health, rape, and incest exemptions), then the COVID-19 cases provide the rationale to enjoin the law as to the plaintiff. I would love for a plaintiff to actually make this argument in a case to see whether "conservative" and "liberal" judges suddenly switch positions on the issue of religion. Even if the plaintiff were to lose, a court would have to carve out an exception to religious exemption claims, a rationale that could then be used by defendants to push back against subsequent religious exemption claims.

    I love it!

    1. Yes, one problem with invented constitutional rights is that it is quite difficult to determine their bounds or they are intended to interact with other legal frameworks.

      Of course, a court might look to what other religious beliefs the plaintiff holds to assess whether their claim of a divine mandate of abortion is sincerely held.

  3. "In which Chicago police officers misunderstand the address of a suspected drug dealer, get a search warrant for an ambiguous address, end up searching the wrong address, then destroy footage that might have explained what happened."

    Why isn't deletion of police video an admission of guilt and automatic jail time/fine?
    Why isn't recorded audio/video immediately copied to a secure facility where it can't be tampered with?

    1. That's a good question. What's the point if they can just delete it if it catches them doing something bad.

      At least force them to be creative, as when a whole bunch of sheriffs shot up a car, and all 7 dash cams "ummm, malfunctioned".

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