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.
Is there such a thing as the "Will of the People"? Over at Liberal Currents, Anthony Sanders, the director of IJ's Center for Judicial Engagement, humbly submits that if there is one it's an indeterminate mist—and, moreover, that judges do a lot of harm by attempting to divine the People's Will instead of dispassionately interpreting the law.
- First Circuit: We're going to reinstate this First Amendment lawsuit by Courthouse News Service, seeking faster access to newly filed complaints in state court. (But we'll also note in passing that when the Seventh Circuit considered the same issue, it abstained.)
- After being struck in the head with a metal handlebar, called the n-word, and having his life threatened by four white men in Lewiston, Me., Black man retrieves a gun from his home nearby, returns to the scene, and fires a shot into a dirt pile. For this, he is convicted and sentenced to three years in prison. First Circuit: It's concerning that, among other things, the only Black potential juror in the 32-person venire was struck for a seemingly trivial reason, only having an 11th grade education. But habeas denied.
- If you saw two guys named Sex Offender and Political Speaker, which one would you think got meaningful, evidence-focused judicial review of their right to engage in anonymous online speech? We'd say Political Speaker, wouldn't you? Second Circuit: You'd be wrong, though. It's Sex Offender.
- After the plaintiff prevails at summary judgment in his due-process challenge to North Carolina's sex-offender registry, the state legislature changes the law to fix the due-process problems. That means the judgment, which was still on appeal, is vacated as moot. State officials: And that means the plaintiff doesn't get attorney's fees because he isn't a "prevailing party" anymore. Fourth Circuit: Did you guys miss the part where he prevailed? It's right there in the first sentence.
- Allegation: After reporting sexual harassment by a supervisor, federal public defender in North Carolina is, among other things, retaliated against and effectively forced to resign. Fourth Circuit (sans any Fourth Circuit judges): Some of her constitutional claims should not have been dismissed.
- LEGAL ALERT! Are you a West Virginia lawyer who does plaintiffs-side drug and device product liability lawsuits? Do you like to run advertisements featuring the logos of gov't agencies like the FDA? Have you been ordered to STOP using the word "recall" in reference to things that have not been recalled? If so, contact your local federal appellate court to find out if your First Amendment rights have been violated. (Fourth Circuit: They have not.)
- Allegation: Without warning, Baytown, Tex. police violently yank woman, who is perhaps drunk but in no way threatening, to ground. Excessive force? District court: Could be! Fifth Circuit: Reversed. She was awfully mouthy and the police only hurt her a little, so the force wasn't excessive. Besides, qualified immunity means we don't judge officers' actions with the benefit of hindsight. [Ed.: Nuh-uh.]
- During plea bargaining, prosecutors will often offer criminal defendants an escape from unconscionably long mandatory minimum sentences if they waive their right to appeal their conviction or challenge it on collateral review. It's a system that's ripe for abuse and coercion. But, per the Sixth Circuit, that's no reason for a district judge to have a blanket rule against approving plea deals that contain these waivers. Mandamus-ed!
- To pay for the cost of their incarceration, Minnesota officials deduct up to 50 percent of sexually dangerous civil detainees' $10/hour wages (for labor including cooking, cleaning, woodworking, and sign manufacturing). A minimum-wage violation? Eighth Circuit: They aren't employees, so no.
- District court: California prison officials must adopt a statewide policy mandating COVID-19 vaccinations for all staff (with medical and religious exemptions). Ninth Circuit: Vacated. The current policy (in which unvaccinated staff are regularly tested and all prisoners can get vaccinated) may not be the most medically efficacious, but that does not mean it violates the Eighth Amendment.
- Man uses Yahoo and Facebook to organize trips to the Philippines for underage encounters and to receive underage porn. Both services find evidence of this and kind of on their own initiative, but kind of because of federal laws, pass it on to the FBI. Fourth Amendment violation? Ninth Circuit: No state action so it's fine. Dissent: That's true for Facebook, but not for Yahoo. Orin Kerr: "Holy crap," this case just made some crazy-wild law on digital seizures and terms of service without the judges even realizing it.
- Woman purchases home in Los Angeles next-door to a detective and her family—whom she soon discovers to be neighbors from hell. They park on her driveway, hose their dog's droppings onto her property, and call police on her on multiple occasions. In one incident, they alleged that she tried to run over the detective's daughter; she's arrested but later declared factually innocent thanks to a surveillance video. In another, they alleged that she stabbed the detective's husband. (He was not stabbed.) Did the detective violate the Fourth Amendment by procuring a false arrest? Jury: Sure did, have $3 mil for the trouble. Huzzah! Can she take their home to collect on the judgment? Ninth Circuit: Sure can.
- From 2017 to 2020, Espanola, N.M. officials repeatedly refuse to turn on water unless new homeowners pay off the previous owner's water bill. And, says the city, that means they can't sue in 2020 because the statute of limitations started running in 2017. Tenth Circuit: But the "repeated violation" doctrine (which is different, of course, from the "continuing violation" doctrine) salvages at least some of the homeowners' claims.
- Man charged with particularly heinous crimes is allegedly advised by counsel not to accept plea deals for 15-, 10-, and 8-year sentences because the gov't doesn't have the evidence convict. It does, and he gets a 30-year sentence. Tenth Circuit: Could be the man's Sixth Amendment rights were violated.
- And in en banc news, the Fifth Circuit will not reconsider its ruling that an internet troll cannot sue the HuffPost in Texas for libel (for calling him a Holocaust denier) as HuffPost is based in New York and incorporated in Delaware. Dissental: But it has Texas readership and Texas-specific advertising, and, as a Texas resident, he was largely injured in Texas.
- And in more en banc news, the Sixth Circuit will not reconsider its ruling forgiving the feds' failure to timely argue that a vehicle passenger lacked Fourth Amendment standing to challenge a search of the car.
- And in amicus appearance news, next week IJ will argue to the Fourth Circuit that the feds can't forfeit $69k cash because they didn't prove—or even specify—the crime they believe the property owner committed. (He did drunkenly crash his car into a concrete pillar, but that's not something that gives rise to a federal forfeiture.) Under the Civil Asset Forfeiture Reform Act of 2000, the burden is on the gov't to affirmatively prove forfeitability, and the district court erred by instead putting the burden on the owner to defend against the gov't's speculation and conjecture.
Victory! In 2015, officials in Zion, Ill., passed an ordinance requiring that renters (of whom the mayor said there were too many) submit to warrantless interior home inspections on pain of $750-per-day fines against their landlords, who could also lose their right to rent the property. (One landlord was fined the astronomical sum of $114k!) But last week—following a federal judge's refusal to dismiss a challenge to the ordinance last year—the city amended its ordinance. Now inspectors will need either a warrant or consent to enter a home. The suit will proceed, however, on the question of whether IJ's clients are entitled to declaratory relief and damages for past Fourth Amendment injuries. Click here to learn more.