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 Bound By Oath podcast: With the doors to federal courthouses closing on civil rights plaintiffs, the final episode of the season looks at state constitutional and common law causes of action as an alternative way to hold government officials accountable for their misconduct.
- In February 2020, Senator Richard Burr made some suspicious stock trades right after being briefed on the pandemic, prompting media attention and a now-dropped DOJ investigation. Can the L.A. Times get a look at hypothesized court records relating to a search warrant for the senator's cellphone—and also the DOJ's sealed motion in opposition? Last year, the district court said no. But given some subsequent disclosures from a parallel SEC investigation into the senator and his brother-in-law, the D.C. Circuit says the district court should take another look.
- After state prosecutors in New York and Massachusetts launched investigations into whether ExxonMobil said misleading things about climate change, ExxonMobil sued to enjoin the investigations, claiming they were pretextual and designed to suppress one side of the climate change debate. Second Circuit: The claim against the NY attorney general became moot when the state actually brought an enforcement action against ExxonMobil and then lost at trial. And the claim against the MA attorney general is barred by res judicata, as ExxonMobil could have brought these arguments in its related state court action. (Another enforcement action remains ongoing in MA state court.)
- Allegation: The day after mass shooting at a Florida high school, a Virginia high school student has a factual and inoffensive discussion about it with classmates. A teacher overhears, misconstrues the nature of the conversation, and reports the student, who is investigated by school police (who say the teacher's report is unfounded) and suspended from school "for his 'own safety.'" Fourth Circuit: The student's First Amendment claim against the school board, which ratified the suspension, should not have been dismissed.
- Lucky! The Fifth Circuit just got assigned the same term paper in three different classes! Relatedly, various challenges to Texas voting procedures fail because of sovereign immunity (over a dissent by Judge Higginbotham, who sees a troubling erosion of the Ex Parte Young doctrine).
- Beginning in 2010 and continuing for eight years, hunters and property owners in Bossier Parish, La. are subjected to a series of increasingly disturbing crimes, including thefts, burned deer stands, nails left in driveways, dogs shot and killed, and houses and cars shot into. All of which police believe is the work of a sole perpetrator, who also sends taunting letters and leaves behind evidence to frame innocent people, including the plaintiff, who was arrested in 2017 over two 2012 arsons (despite his alibis for other crimes and despite the fact that the crimes continued after he moved 60 miles away in 2014). Yikes! The man now believed to be the perp had been acting as a confidential informant for the lead investigator since 2011. Fifth Circuit: Most of plaintiff's claims are unavailing, but he can sue the lead investigator for making false statements and omitting exculpatory information at a hearing. (And he can sue the sheriff for inadequate policies on preserving evidence and the use of confidential informants.)
- Fifth Circuit (2018): A reasonable jury could find a Southlake, Tex. officer who took a diminutive, legally blind woman to ground on a brick porch (causing a herniated disk and bloody urine) used unnecessary force. No qualified immunity. Fifth Circuit (2022): No need to disturb a jury verdict in the officer's favor. Nor was it error for the district court to allow the officers to re-characterize their efforts—repeatedly banging on doors at the woman's home at 2 a.m. and entering without a warrant—as an "active investigation" rather than a "knock-and-talk."
- At least two male supervisors at Houston Fire Department "accessed a private, intimate, nude video that [plaintiff] had obviously made exclusively for her husband. They did so without her knowledge or permission. And they watched it repeatedly, both on and off-duty, alone and in front of co-workers, for over nine years." District court: She "cannot show that she was subjected to a hostile work environment – just that she is angry and embarrassed." Fifth Circuit: Reversed.
- Landlords: This Minneapolis ordinance effectively requires us to rent to tenants we'd like to exclude, and that's a physical invasion of our property! Eighth Circuit: Guys, they're tenants, not Vikings. There's no invasion. No preliminary injunction for you.
- Allegation: Officers under the direction of Morton County, N.D. shot a peaceful protester (who was shielding women and elderly protesters) in the face with a lead-filled bean bag, shattering an eye socket and leaving him with lead in his eye. District court: He can't sue because of Heck (see summary below). He entered a pretrial diversion program to resolve the criminal trespass and obstruction charges against him, and allowing him to sue would imply the invalidity of those convictions. Eighth Circuit: Ah, but he wasn't convicted. Case undismissed. (IJ urged the court to reach this result in an amicus brief.)
- The U.S. Supreme Court's 1994 decision in Heck v. Humphrey bars convicted criminals from bringing § 1983 suits when a victory would necessarily mean the underlying convictions were invalid. But in an unusual move, an Arizona university student wants the court to apply Heck—and, in turn, its ability to toll statutes of limitations—to his claims. Ninth Circuit: Nice try. The disciplinary warning you got from the school (even if it was based on racist, falsified reports) doesn't implicate Heck or anything similar. Case dismissed as time barred.
- Ninth Circuit: Sovereign immunity may prevent civil servants or diplomatic officials from filing employment-discrimination suits against Kuwait's Consulate in Los Angeles, but that is no barrier for this lady, who seems like she mostly just typed stuff for them.
- If you've ever been to California, you've undoubtedly seen a zillion signs—a product of California's Proposition 65—warning you about the presence of chemicals "known to the state" to cause cancer. Businesses that fail to put up the signs are subject to private enforcement suits in which plaintiffs keep 25 percent of any fines (plus attorneys' fees). Well, this week the Ninth Circuit reminded us all that, however abusive these suits might be, filing them is protected First Amendment activity under the Noerr-Pennington doctrine.
- If you're a plaintiff's lawyer celebrating that previous summary, you'd better sit down, because this week the Ninth Circuit also reminded us that the First Amendment applies to compelled disclaimers and requires that they be "uncontroversial." Because the scientific evidence on the dangers of acrylamide—a substance naturally occurring in some cooked foods and the same substance at issue in the previous case—is anything but uncontroversial, forcing businesses to put up Prop 65 warnings regarding acrylamide likely violates the First Amendment. So future Prop 65 lawsuits regarding acrylamide are enjoined.
- The California Dental Board—which, not coincidentally, is mostly made up of dentists and orthodontists—wasn't so pleased when a company began selling clear teeth aligners direct-to-consumers online. In fact, board members allegedly took a host of regulatory actions designed to drive the new competition out of the market. Ninth Circuit: The online teeth-straightening purveyors have stated a claim that the board members' actions violated the federal antitrust laws. (NB, for those interested in reading about similar dental board shenanigans, we commend this IJ report.)
- Ninth Circuit: It was not clearly established in 2018 "that a school district could not cease patronizing a company providing historical reenactments and other events for students because the company's principal shareholder had posted controversial tweets that led to parental complaints." So Los Angeles-area school officials who dropped a field trip venue over tweets from the shareholder's personal account that, for instance, compared Black Lives Matter to ISIS are entitled to qualified immunity. The officials did possibly violate the First Amendment, though, and while money damages are off the table, injunctive relief may be appropriate.
- Arizona law prohibits the state's Medicaid program from paying for gender reassignment surgery. Does that violate equal protection or Section 1557 of the Affordable Care Act? Ninth Circuit: The state does not need to pay for the surgeries of the two lead plaintiffs while litigation proceeds below. However, the district court erred in reading recent Supreme Court precedent on sex discrimination under Title VII not to apply to Section 1557, which has similar language.
- Truck driver cuts in line to refuel at a Laramie, Wyo. gas station, beats another truck driver who took exception unconscious (and pleads guilty to misdemeanor assault). Can the punchy driver's employer be held vicariously liable for the assault? The Tenth Circuit says no. He was not acting within the scope of his employment, and indeed his employee handbook specifically says not to assault members of the public.
- New Mexico cattle rancher sues beef companies for violating state false advertising laws for labeling beef slaughtered abroad a "Product of the U.S.A." Tenth Circuit (over a dissent): The feds approved the label, permissive though it may be, and federal law expressly preempts state law claims here. (The majority helpfully notes that if you want the genuine article, look for the labels "U.S.A. Beef" or "Fresh American Beef.")
- Allegation: In the 19 days leading up to his death, pretrial detainee at Carter County, Okla. jail did not receive prescribed medications and lapsed into catatonia, psychosis, and fecal incontinence. District court: Can't sue over that. Tenth Circuit: Reversed. His mother can sue both the jail's nurse (who yelled at guards who called her when she was off-duty) and the sheriff, who, among other lapses, declined to hire any medical staff other than the one nurse.
- And in en banc news, the Sixth Circuit will not reconsider its decision that police who arrested an Ohio fairgoer wearing a "Fuck the Police" T-shirt, and who made numerous statements along the same lines, are not protected by qualified immunity (despite state caselaw that says such speech constitutes disorderly conduct).
Friends, you might enjoy a little feature we run over the at the Center for Judicial Engagement's blog called The State Con Law Case of the Week. This week, a heartening but somewhat curious opinion from the New Jersey Supreme Court on an individual's "'right to determine how best to pursue her personal and financial affairs' without the interference of an attorney." Striking down a law that required parties to a "palimony" agreement (alimony, but for pals) to each consult a lawyer separately, the court engaged in some reasoning that … we engage with. History buffs will enjoy the opinion's discussion of the provinces of East New Jersey and West New Jersey.