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.
Michigan friends, we're heading to Plymouth on Friday, May 20 for a forum on the Michigan Constitution, featuring litigators, scholars, and retired Michigan Supreme Court Justice Stephen J. Markman. RSVP today!
- During the 2016 presidential election, campaign-finance watchdog files a complaint with the Federal Election Commission, alleging that the Clinton campaign and the Correct the Record PAC failed to properly disclose coordinated expenditures. The FEC dismisses the complaint by an evenly divided vote and the watchdog sues. The district court then dismisses the suit for lack of standing. D.C. Circuit: Which was error. The group has suffered an informational injury (though what value the information has in 2022 is anyone's guess).
- Former California Congressman Devin Nunes sues Georgia-headquartered, Delaware-incorporated CNN in Virginia for allegedly defamatory claims made in New York about Nunes' conduct in Austria. The case is transferred to New York, but still governed by Virginia choice of law, and the New York court determines that, under Virginia law, California law governs the claims. The California Congressman objects that Virginia law would have applied New York law. Second Circuit: Virginia law would have applied California law. Dissent: Virginia law would have applied New York law. Or maybe D.C. law.
- Drug kingpin commits "an array of crimes worthy of a James Bond villain," including dealing arms and technology to Iran and North Korea, attempts at minor warlordism in Africa, and plotting a coup in the Seychelles. Once the DEA caught up with him in Liberia in 2012, he immediately cooperates, resulting in a 25-year sentence. Three of his underlings are convicted of murdering a Filipino real estate agent and sentenced to life in prison. But wait! The feds didn't hand over certain classified docs, including impeachment evidence against the kingpin, until after trial—and only at the Second Circuit's behest. Brady violation? Second Circuit: No, there was so much evidence against these guys that they would've been convicted anyway. Also Second Circuit: But some parts of the convictions can't stand due to the vagueness of the law. Remanded for resentencing.
- West Virginia used-car dealers file motion to suppress evidence obtained during search, and four years later a court agrees that the state trooper who applied for the warrant omitted important facts and made misleading statements and dismisses the criminal charges (failing to disclose to customers that their cars had been totaled before being refurbished) with prejudice. Fourth Circuit: But it's too late for them to sue the trooper over the unconstitutional search. They should have sued while the criminal case was still pending.
- Allegation: While nurses treat his alarming symptoms (burning in lungs, bad cough, recurrent fever, loss of 40 pounds) with cough drops and Tylenol, North Carolina inmate's internal organs are being damaged by a flesh-eating organism. The delay in proper treatment nearly costs him his life. Fourth Circuit: And his suit against the nurses, which he filed from prison without counsel and didn't initially name the nurses as defendants, was nonetheless filed on time. Case un-dismissed.
- After gunshots are heard in the vicinity, driver of car full of teens, seeking to get away, does not stop for Balch Springs, Tex. police officer, who shoots at the car five times, killing a 15-year-old passenger. Fifth Circuit (over a dissent): No qualified immunity. Whether the car was accelerating toward or away from a second officer is a question for the jury. (A criminal jury convicted the officer of murder, though discretionary review of his appeal has been granted.)
- After the Biden administration released a memo outlining the Department of Homeland Security's immigration priorities, the states of Arizona, Montana, and Ohio filed suit in Ohio to enjoin its implementation. The district court issued a nationwide preliminary injunction and the feds sought a stay pending appeal. Sixth Circuit: Stay granted. It's not clear how the states are harmed by the memo or that it is even reviewable, and the states would probably lose on the merits anyway. Self-Concurrence (by Chief Judge Sutton): Stop issuing nationwide injunctions.
- Traffic tickets are big business in Chicago. The city issues around 3 million tickets per year, which resulted in $1.8 bil in driver debt last year, and revenue from tickets generated 7% of the city's operating budget in 2016. When the car owner's parking-ticket debt accumulates, the city often impounds the car and attaches a lien for unpaid tickets and fees. These costs often exceed the value of the car and ability of the owner to pay, leaving many to declare bankruptcy. Seventh Circuit: And that lien is avoidable in bankruptcy, meaning that the owner may not have to pay the debt to get her car back.
- Does it violate Minnesota's anti-harassment law for a nonprofit to send postcards urging local businesses not to advertise in a particular local paper because the paper also runs ads for strip clubs and pornography? Nonprofit: Well, that law was enforced against us in 2019 for sending out our postcards, and it sure seems to restrict our speech. So we'd like the federal courts to vindicate our First Amendment rights. Eighth Circuit: Except the law doesn't actually apply to what you want to do, so you lack standing to challenge it. Dissent: Except . . . the law was literally enforced against these guys three years ago. For doing precisely what they want to keep doing.
- On remand from the Supremes, the Ninth Circuit once again finds that a data analytics company whose business model depends on scraping info from LinkedIn users' public profiles is entitled to a preliminary injunction and continued access to that data while LinkedIn's suit seeking to block the scraping proceeds. (LinkedIn users who don't want their profiles scraped can change their privacy settings.)
- Oregon state senators duck out of the senate chamber in 2019 to stop the body from having a quorum. Members of the majority party threaten to have them arrested. To which one of the quorum-breaking senators responds with comments like "[s]end bachelors, and come heavily armed." Which leads the majority leadership to require him to give 12 hours' notice before visiting the capitol. Which leads to the senator's suing a bunch of other senators and staff. Which the district court dismisses. And which the Ninth Circuit reinstates: Could be the 12-hour-notice requirement was retaliation against this guy for engaging in protected speech.
- Allegation: In 2020, construction company transfers employees from one job site in San Francisco where there have been lots of COVID-19 infections to another job site, where plaintiff, also an employee, also gets infected and brings the virus home to his wife, who has to be hospitalized for more than a month. Ninth Circuit: And we have some questions about state law we hope the California Supreme Court will clear up.
- Man escapes from San Joaquin County, Calif. jail highway work crew, is on the lam for over three weeks before officers and a K-9 catch up to him. Ninth Circuit: Viewing the facts in plaintiff's favor (except those clearly contradicted by bodycam footage), the dog's initial bite did not violate the Eighth Amendment, but any post-handcuff beatings and bitings (if they happened) clearly did, so no QI. Dissent: "I would affirm the district court in full, toss aside [the] excessive force and failure-to-intervene claims, and revel in the sound quality of modern computer speakers."
- After jerking environmental group around for more than a decade (and finally being mandamused!), the EPA denies a petition to cancel the registration for a pesticide used in flea collars. Ninth Circuit: We ordered you to provide a "reasoned" explanation, and the explanation you provided is not that. Do it again.
- Utah Highway Patrol officer pulls over a car with Kansas plates. After talking with the driver, he returns to his patrol car and calls for a K-9 unit. The K-9 eventually shows up and alerts on the car, and the resulting search turns up some fentanyl and a kilo of cocaine. But did the officer have reasonable suspicion to extend the stop? Tenth Circuit: No. The only things the officer cites are: the presence of a duffle bag in the back seat, the presence of air freshener in the center console, and the facts that the driver did not roll his window down completely, could not locate his rental agreement, and paused briefly before answering questions about his trip. The cop had a hunch, and hunches aren't enough. Suppress the evidence.
- Sometimes you read an opinion about the federal government's designation of a critical habitat for the New Mexico Meadow Jumping Mouse and you spend the whole time wondering, "But what does the New Mexico Meadow Jumping Mouse look like?" Not so with this helpfully illustrated opinion from the Tenth Circuit.
- Allegation: Kansas inmate's lawsuit over a prison staffer labeling him a snitch is dismissed because his access to the law library is severely restricted while he's in solitary confinement. Tenth Circuit: His new claim over the denial of access to the library should not have been dismissed.
- Eleventh Circuit: Not only does the nonprofit group Speech First have standing to challenge the University of Central Florida's discriminatory-harassment and bias-related-incidents policies, it's entitled to a preliminary injunction on the former (and the district court should consider a PI for the latter on remand). Concurrence: "A university that turns itself into an asylum from controversy has ceased to be a university; it has just become an asylum."
- And in en banc news, the Eleventh Circuit will reconsider its decision and perhaps its precedent regarding the Prison Litigation Reform Act's "three strikes rule," which prohibits pro se prisoners from filing lawsuits in forma pauperis if they have previously had three lawsuits dismissed for failure to state a claim. Under its earlier ruling, now called into question, the Eleventh Circuit held that lawsuits dismissed for failure to exhaust administrative remedies count as strikes.
- And in amicus brief news, IJ is asking the Eighth Circuit to uphold a district court ruling that denied absolute immunity to a Missouri state judge who, on two occasions, jailed two minor siblings because they declined to go home with their mother, preferring instead their father. (On one of those occasions, the judge personally put the children in a cell for over an hour, even though court had closed for the day, they hadn't been held in contempt, and weren't parties to any proceeding.) It's no exaggeration to say the doctrine of judicial immunity is a bit of a bugaboo amongst your otherwise even-tempered Short Circuit staff; for starters, it's irreconcilable with Section 1983, which was passed with the intent to create a civil remedy for bad-acting state judges.
- And in additional amicus brief news, IJ is asking the Ninth Circuit to reverse the dismissal of a suit alleging that, without giving orders or warnings, Stockton, Calif. police surrounded and beat a crowd of Cinco de Mayo revelers (who at most were guilty of jaywalking), broke the plaintiff's leg with a baton, and then filed false reports so that he was charged with resisting arrest. The district court said his suit was barred because the plaintiff entered a pre-trial agreement, pleading no contest in exchange for having the charge dismissed. But the Supreme Court has been clear that litigants in his shoes are allowed to proceed.
Gov't officials should not be able to sue their critics into submission. But that's what the Village Attorney of Mt. Pleasant, Wisc. is trying to do, claiming a local activist, Kelly Gallaher, caused him "emotional distress" when she called him out on an inaccurate statement he made to the media. (He said that an ordinance passed earlier this year (extending the terms of Village Board members from two years to three) had been discussed for years when in fact there was very little public notice.) In an attempt to avoid the crippling costs of defending the meritless defamation suit, Kelly acceded to the Village Attorney's demand that she retract her—accurate—claims. But he filed suit anyway, and this week Kelly and IJ joined forces to vindicate Kelly's First Amendment right to criticize the gov't and put a bully in his place. Click here to learn more.