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.
Last call for Short Circuit Live! RSVP now for our live recording of the Short Circuit podcast at the National Press Club on Wednesday, April 6 at 6:30 p.m. Featuring Paul Clement, Lisa Blatt, and Kelsi Brown Corkran, the event is nearly full!
Plus, just released on the Short Circuit podcast, lemon lawyer and YouTube celebrity Steve Lehto joins the panel to talk about an arrest over f-bombs at an Ohio county fair as well as a takings case in Minneapolis.
- Despite losing its RLUIPA case in the First Circuit, it does seem that the Shrine of St. Nicholas the Wonderworker, Patron of Sailors, and Brewers and Repentant Thieves will be allowed to proceed with the renovation of its brewery (operated by Orthodox Christian monks), chapel, and fellowship hall in Marblehead, Mass. God be praised.
- Disgruntled fantasy baseball players sue Major League Baseball, the Red Sox, and the Astros, alleging that they would have done better in their fantasy leagues—and won more money—if the Sox and the Astros hadn't broken the rules on electronic sign-stealing and if MLB hadn't covered it up. Second Circuit: MLB never claimed that its league was free of cheating—a regrettable reality in sports—which means there was no fraudulent misrepresentation.
- Police officers are not entitled to absolute prosecutorial immunity for omitting exculpatory information on an arrest warrant affidavit, says the Second Circuit. And, over a dissent, neither are these East Hartford, Conn. officers entitled to qualified immunity.
- In return for not reporting her, Virgin Islands inspector seeks sexual favors from unlicensed manicurist who is in the country illegally (and who adroitly downloaded a call-recording app, allowing his solicitations to be played before the jury). Third Circuit: He's probably guilty of something, but not bribery. Conviction vacated.
- We're not saying we don't appreciate the Hamilton references strewn throughout this Fifth Circuit opinion, we're just saying we're disappointed the dissent did not challenge the majority to a rap battle.
- After a Louisiana state court awards some $10.5 mil to property owners who claimed a New Orleans flood control project took their property, the city declines to pay. Indeed, the state constitution makes clear that such judgments are just unenforceable IOUs, and state courts have no means to order cities to pay up. Fifth Circuit: Frustrating! But perhaps the city will someday do the right thing. There is no federal right to timely payment of judgments. (Click here for a IJ amicus brief urging the court to reach the opposite conclusion.)
- Under federal law, a tax credit is available if you mix a taxable fuel (like butane) with a liquefied petroleum gas (like butane), but not if you mix a taxable fuel (like butane) with another taxable fuel (like butane). Sparks fly as this Fifth Circuit panel weighs what to do about lighter fluid.
- Man is kicked out of sex offender treatment program for failing polygraph tests and sent to prison, where he remains for nearly 13 years. Yikes! Polygraphs are not only junk science but also inadmissible as evidence under Texas law, and a state court orders him freed. Can he sue Dallas County over its purported polygraph policy? Fifth Circuit: That depends on whether the Dallas County District Attorney—who may be elected by county voters, may exercise his authority exclusively in the county, and may have "complete dominion" over county policies—was acting on behalf of the county or the state. And since the DA was acting on behalf of the state, no, the man can't sue.
- A one-time use of a racial epithet doesn't always make for a viable hostile work environment claim, says the Fifth Circuit, but in this instance—where a Hispanic supervisor allegedly called a Black employee the N-word in front of other employees—the claim is indeed viable. Claim undismissed.
- Detroit high school freshman winds up with a broken jaw, among other injuries, after he is allegedly slammed to ground and kneeled on by (230-lb.) assistant principal and then struck by (230-lb.) police officer. Excessive force? Sixth Circuit: To a jury this must go. No qualified immunity.
- Ohio University police officer sexually assaults high school student for several months—not the first time he'd been accused of such conduct—after meeting her at "career day" on the university's campus. Can she sue the university? The Sixth Circuit says no, because her complaint didn't sufficiently allege, as is necessary under Title IX when plaintiff is a nonstudent (at the university), that the career day was an "education program or activity."
- Salinas, Calif. church buys a new building on Main Street, but the local zoning code prohibits it from hosting worship services on the first floor (a fact the church was aware of when they bought the building). After unsuccessfully seeking a zoning code amendment and a conditional-use permit, the church sues under the RLUIPA. Ninth Circuit: Even though the church has now sold the building, they sought $1 in damages, so the case is live. But have they considered holding their services on the second floor?
- Portland, Ore. police officer pepper sprays woman outside City Hall. Might the officer have thought she was attempting to drag another officer into a crowd of angry protesters? Or did she merely grasp the officer briefly to steady herself after he pushed her off some steps? Ninth Circuit (over a dissent): To a jury this must go. No qualified immunity. (See 23:25 to decide for yourself. But steel yourself for expletives.)
- Ninth Circuit: It's clearly established and also obvious that police shouldn't shoot people who pose no immediate threat, even if they are armed and the situation is volatile. So no qualified immunity for a Riverside County, Calif. police officer who shot and killed a man, who was holding a bat or maybe a stick, six times without warning. A jury should decide if the deceased was threatening or not.
- Allegation: After transgender inmate tells investigators that she was raped in Colorado federal prison, she's put back in general population anyway, where she is again raped. Can she sue the investigators? District court: No, she's claiming they were deliberately indifferent to risk posed by other inmates, and we only have precedent about deliberate indifference to risk from a medical condition. Tenth Circuit: Instead, we say she pled herself out of court when she wrote in her complaint, without the assistance of a lawyer, that the investigators did not "comprehend and realize the seriousness of the situation," which means they couldn't have been deliberately indifferent at all. Qualified immunity. (Click here for an IJ amicus urging the court to reject the district court's reasoning.)
- Nusret Gökçe, better known as the internet-famous Salt Bae, has made a mint bouncing kosher salt off his forearm and selling $1k gold-covered ribeyes to suckers gourmets. But did he also violate federal labor law by applying a mandatory 18 percent service charge at his restaurants toward employee wages, rather than treating the charge as a tip? Eleventh Circuit: Customers may not like adding tips on top of mandatory service charges on top of overpriced meals, but the service charge remains a service charge, not a tip.
- And in amicus brief news, IJ is asking a federal district court to apply strict scrutiny to a New York law that prohibits non-lawyers from giving individualized advice on how to respond to debt-collection lawsuits. The law would impose criminal penalties on a pastor in the Bronx who started a nonprofit to assist low-income congregants who face such lawsuits without any legal help.
- And in more amicus brief news, IJ is asking the Fourth Circuit to reverse a district court's grant of qualified immunity to a Winterville, N.C. officer who prevented a passenger at a traffic stop (initiated over a minor alleged infraction) from livestreaming the encounter. The district court ruled that while there may be a clearly established right to record the police, that does not mean there is a clearly established right to livestream the police.
- And in further amicus brief news, IJ is the asking the Fifth Circuit to reconsider its grant of qualified immunity to a Fort Worth, Tex. officer who wrenched a restrained, unresisting 18-year-old's arm up and behind her back, admittedly to cause pain, when she didn't answer his questions with sufficient alacrity.
For just shy of a century, and thanks to an old-timey bootlegger case in which the U.S. Supreme Court misread Blackstone and established the "open fields" doctrine, it's been blackletter law in federal court that the government doesn't need a warrant to search private land (beyond the immediate confines of a home). But this week, a three-judge state circuit court panel ruled that Tennessee's Constitution "offers a broader guarantee of security for an individual's real property" and that it won't do for officials to roam around at will. Hear, hear for state constitutions! Click here for more.