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.
Attention D.C.-area folks! The Short Circuit podcast is heading to the National Press Club on Wednesday, April 6 at 6:30 p.m. to record a live show with Paul Clement, Lisa Blatt, and Kelsi Brown Corkran. RSVP today!
- Beginning in 1971, The New York Times published excerpts of the Pentagon Papers that laid bare the U.S.'s Vietnam efforts, including JFK's role in South Vietnamese President Ngo Dinh Diem's assassination and LBJ's "we seek no wider war" lies. Nixon investigates how the documents were obtained and disseminated, and a grand jury subpoenas a Harvard political scientist who refuses to testify, is held in contempt, and spends eight days in jail. Seems like a riveting read! But a Harvard historian finds herself unable to obtain the grand jury records, as they are under indefinite seal. First Circuit (adding to a circuit split): Under seal the records shall remain.
- In 2018, a Massachusetts state judge and her courtroom deputy allegedly snuck an illegal immigrant out the back of a courthouse while an ICE agent waited for him in the front. A clever ruse! But also a federal crime? First Circuit: You'll have to find out at trial. Neither the doctrine of judicial immunity nor the Tenth Amendment, which bars the feds from commandeering state officials to carry out federal policy, give us jurisdiction to throw out the indictments beforehand. Though maybe this prosecution could have been a meeting instead.
- Investment analyst learns through work that a private-equity company wants to buy the home-security company ADT. Based on this inside information, he buys $25,000 worth of ADT call options, which skyrocket in value by 6,000% the day the acquisition is announced. After he's convicted of insider trading, his employer seeks restitution under the Mandatory Victims Restitution Act for legal fees incurred while cooperating with the feds. Second Circuit: And they can get them for their participation in the criminal investigation and trial, but not for the related SEC civil investigation.
- Allegations: Prison guard knowingly mislabels prisoner a sex offender (the prison had a special "Sex Offender" T-shirt), putting the man in fear of being brutalized by his fellow inmates. Prisoner sues officer, claiming Eighth Amendment violation. Third Circuit: We could, perhaps, kick the entire case on Bivens grounds (new context, etc. etc.). But we'll do the prisoner (and the development of the law) the courtesy of addressing at least part of his Eighth Amendment claim directly. He loses: There's no Eighth Amendment right not to be forced to wear a sex-offender T-shirt in prison. Also, while the prisoner plausibly alleged that the guard unconstitutionally failed to protect him from attacks, he can't get damages for the guard's failure to protect him from attacks that never happened.
- Navy SEALs and other servicemembers challenge COVID-19 vaccination requirement, asserting that it violates their sincerely held religious beliefs. Turns out that the Navy has a 50-step process for adjudicating such accommodation requests that invariably results in their denial. District Court: Which sure sounds like a violation of the Religious Freedom Restoration Act. Fifth Circuit: Agreed. The Navy's request for a stay of the preliminary injunction pending appeal is denied.
- Motivational speakers pump you up. They egg you on. They sue your high school after the softball team's Twitter account posts a short passage from their book. Fifth Circuit: Yeah, they shouldn't do that last thing.
- After a Coldspring, Tex. high school janitor is brutally murdered, the sheriff set his sights on a local family, two teens and their father, relying on dog-scent lineups to weave a tale that they killed the janitor for money they thought he'd hidden in his house. The father was sentenced to 75 years in prison, the daughter to life, while the son was acquitted after the jury deliberated for less than an hour. Texas high court: Both the father's and daughter's convictions gotta go. Much litigation ensues about the gov't officials' behavior. Fifth Circuit (2012): The son's claims can go forward. Fifth Circuit (2018): The son's claims can go to trial. Fifth Circuit (2019): The daughter's claims can go to trial. Jury trial (2020, finally): The sheriff left out important stuff from the arrest-warrant application, and it seems to have been on purpose or at least reckless. $1 mil for the siblings. Fifth Circuit (2022): Indeed.
- It is your constitutional right to record police, but can they arrest you (with some oomph) if you get too close? Fifth Circuit: They sure can. Qualified immunity for the Austin, Tex. officers who arrested (and took to the ground) "cop watcher" after he obstructed their view and ability to perform their duties.
- IRS: This new notice we published isn't a substantive regulation requiring notice and comment. Sixth Circuit: You just fined these taxpayers five figures for failing to do a thing they wouldn't have had to do before you published your notice. That looks like substance, guys.
- Geneva, Ohio officer responds to a family dispute that resulted in a broken TV remote, knowing the family's adult son was experiencing mental health issues. "Throughout the entire encounter, [the son] never said anything to [the officer], he never reached out towards [the officer], and he . . . did not raise his fists or make any threatening gestures." But he also did not respond to the officer's commands and kept walking towards the officer. So, the officer tased the son three times and shot him nine times. District Court: QI granted. Sixth Circuit (over dissent): Reversed.
- Allegations: Creepy college instructor does lots of creepy things to student, and it takes the school quite a long time to finally fire the instructor. Student sues school under Title IX for deliberate indifference to her first report of sexual harassment. District court: She hasn't alleged the elements for deliberate indifference that have been developed in cases of student-student harassment. Case dismissed. Sixth Circuit: But the deliberate-indifference standard is different (and less stringent) for teacher-student harassment. Case un-dismissed.
- Following the arrest and conviction Larry Nassar, who sexually assaulted hundreds of victims during his 18 years as the team doctor for USA Gymnastics, the team declares bankruptcy in the face of a slew of civil lawsuits. Did Liberty Insurance—the team's insurer—have a duty to defend those lawsuits and pay expenses incurred in investigation? Or were those expenses excluded under the policy's "wrongful conduct exclusion"? Seventh Circuit: Most of them were covered, but possibly to a limit of $250,000, to be considered on remand. Dissent: The policy excludes claims "in any way related to" an insured's wrongful conduct, which these claims surely are.
- After Twitter banned former President Donald Trump from its platform, Texas Attorney General Ken Paxton served the company with a Civil Investigative Demand (CID), asking the company to produce documents relating to its content moderation decisions. Twitter sues, alleging that the demand is government retaliation for the company's First-Amendment-protected content moderation decisions. Ninth Circuit: Come back when the AG tries to enforce the CID. Until then, even though the CID may chill your speech and the case is constitutionally ripe, the case is not "prudentially" ripe because you have the option of ignoring the CID.
- After district attorneys from three California counties are denied intervention in a challenge to California's death-penalty procedure (which they seek to defend), a member of the Ninth Circuit sua sponte calls for rehearing en banc. But there aren't enough votes for rehearing, and several members of the Ninth Circuit take issue with that.
- Allegation: Federal corrections officer in Atwater, Calif. publicly labeled prisoner as a "snitch" and offered a bounty for physical assaults against him. Predictably, the prisoner was soon beaten. This is a new Bivens context, so the case must be dismissed, right? Ninth Circuit (over dissent): Nope. Nothing counsels against a "very modest expansion of the Bivens remedy to this context." The case may continue.
- Casper, Wyo. officers shoot and kill a man with schizoaffective disorder wielding a sword in public (later revealed to be a prop sword). Tenth Circuit: Which was constitutionally reasonable. Concurrence: Eh, which was maybe not constitutionally reasonable under the circumstances—we really should be looking harder at whether police needlessly escalate in situations like this. But in any case there was definitely no violation of clearly established law.
- New Mexico political gadfly posts unflattering comments on an Otero County Commissioner's personal Facebook page, leading the commissioner to block him. The aggrieved gadfly sues, alleging unconstitutional retaliation for his exercise of First Amendment rights. Tenth Circuit (unpublished): But the defendants are all entitled to qualified immunity. Previous cases involving official government Facebook pages are not on point, and the one potentially on-point out-of-circuit case isn't enough to clearly establish the law.
- Here's an Eleventh Circuit case about standing in a marsh, in at least two different senses of that phrase.
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