The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Case closed! Seven years ago, IJ filed a Freedom of Information Act request for all the records in the IRS's asset forfeiture database. And we're happy to say that this week—after an initial demand by the IRS for $750k, and then the agency reversing course and saying the data wasn't subject to FOIA at all, and a whole bunch of litigation—the IRS has finally turned over everything we asked for. Which we'll use to keep the public informed. Click here to learn more.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
- Second Circuit: It's fair to say that juror #4 in this criminal antitrust trial over alleged bid-rigging in international currency exchanges should not have posted a podcast during the trial in which he admitted that he had stopped paying attention. But it's also fair to say that the conspirators should not have been sending instant messages that literally read "conspiracies are nice."
- Heirs: Wise men say only fools rush in[to litigation], but [we] can't help [seeking to terminate our 1983 grant of rights in our dad's hit song "Can't Help Falling in Love"]. Second Circuit: Like a river flows, surely to the sea, darling, so it goes. Some things [aren't] meant to be [under the Copyright Act of 1976, which grants termination rights solely to authors].
- Fifth Circuit: It's one thing for a prosecutor to allow a witness to lie on the stand, but it's quite another for a prosecutor to invent the witness's testimony out of whole cloth. So a Livingston Parish, La. prosecutor who allegedly intimidated a witness, "barely a teenager at the time," into repeating a false narrative at trial is not shielded from suit. Judge Ho, dubitante: Absolute prosecutorial immunity is probably "wrong as an original matter" (and so are qualified and municipal immunity), but it does protect this guy (and also his co-defendant, a detective).
- One hundred seventy-seven people walk into a bar. They're later arrested for involvement in a deadly shoot-out—at Waco, Tex.'s Twin Peaks—and indicted by a grand jury. Many of the arrestees are now pursuing false arrest claims (and, others, First Amendment retaliation claims), alleging the officers omitted exculpatory evidence to secure arrest warrants. District Court: Even if they did, the grand jury was an "independent intermediary" that resolved any taint. Fifth Circuit: Not so fast. If the grand jury was also misled by the officers, then the taint was not resolved. Remand is necessary.
- Man is arrested, spends four days in jail, and has his apartment searched and his phone and laptop seized after making a satirical Facebook profile of the Parma, Ohio police department. His alleged crime? Using a computer to disrupt police business. But a jury acquits (and the internet awards the department the 2016 Censorious Asshat of the Year Award). Can the man pursue a First Amendment claim, among others, against the officers? Sixth Circuit: Listen, maybe the Facebook page was protected speech, maybe it wasn't. Tough to say. But what we do know is that there was no clearly established violation here. Qualified immunity for the officers.
- Does it violate the Eighth Amendment to house male and female inmates together? The Sixth Circuit says no, so a woman impregnated by another inmate (who had prior violent tendencies) during her time in a facility for severely mentally ill detainees cannot sue Wayne County, Mich.
- The Supreme Court has (in)famously interpreted the Commerce Clause to apply to just about anything anywhere in the country, no matter how local and how unrelated to commerce. But that's technically the "Domestic Commerce Clause." There's also the "Foreign Commerce Clause." Is it as pliable? Sixth Circuit: Luckily the Supreme Court has never gone there, so we're gonna say no. And the same should be true for treaties. However, the Supreme Court has gone there, so this defendant who sexually abused children abroad loses.
- In 1990, the Supreme Court held that mandatory bar dues (the lawyer kind, not the public-house kind) do not violate the First Amendment. In 2018, though, the Court held that mandatory public-sector-union dues do violate the First Amendment. Wisconsin lawyer: Which means that 1990 decision about bar dues is no longer good law. Seventh Circuit: Which is above our pay grade. The Supreme Court doesn't like it when we lower courts deem its precedent "overruled by implication," so your beef is with One First Street in D.C., not 219 South Dearborn in Chicago.
- Over the last 30 years, Mexican national has been removed from the United States seven times. Hoping the eighth time will be the charm—and only 10 days after his most recent removal—he scales a border fence and is almost immediately spotted by a Marine Corps unit using night vision to monitor the border. The Marines alert Border Patrol agents, who promptly arrest the man. But wait! Did the Marines violate the Posse Comitatus Act, which prohibits the military from assisting in civilian law enforcement? Ninth Circuit: No, the law provides exceptions for assistance authorized by Congress, and Congress in 2016 authorized the Secretary of Defense to deploy ground-based surveillance at the border.
- Allegation: Nevada inmate reports intense pain during urination, but medical officials adopt a "wait and see" approach to treatment. When he finally makes it to the hospital three years later, doctors drain 14 pounds of fluid from his bladder and urinary system, and, despite undergoing surgery, he now has some long-term issues. Ninth Circuit: "It is true that we have not found a case on all fours with the factual context presented here." But no qualified immunity.
- Ravalli County, Mont. officials tender a $50k "offer of judgment" to man suing them over his arrest and night spent in jail. But wait! Before the man's 14-day window to consider the offer is up, a judge rules for the county—and the county withdraws the offer. Ninth Circuit: Nope, the offer stands for 14 days regardless. Pay the man.
- It is clearly established that officers can't tase, strike, choke, or kneel on suspects after they've been subdued. But what about pepper spray? The Tenth Circuit says that's clearly established, too. So no qualified immunity for these three Tulsa, Okla. officers, including a rookie and his training officer. And the district court needs to take another look at the municipal liability claim as well.
- Denver bans camping on public property, which officials enforce through homeless-camp sweeps. In 2016, a group of homeless people sued, alleging that the sweeps, which were conducted without notice and destroyed personal property, violated due process. The parties settled the case, setting detailed protocols for the city's camping-ban enforcement. But the sweeps continued—allegedly without the protocols required by the settlement. District court: Stop that, city. Tenth Circuit: Not only should the settlement agreement be enforced in state court, but its terms preclude the claims brought in this suit. Dissent: The city didn't raise preclusion in its appeal, and we shouldn't raise it for them.
- In 2015, federal contractors spilled 3 million gallons of wastewater from a defunct gold mine near Durango, Colo. into a creek, turning it and waters downstream mustard yellow. You may have seen it in the news. Anyhoo, the Tenth Circuit says some downstream property owners' state-law negligence claims were filed too late. Though their suit was filed in New Mexico (where the statute of limitations is three years), under the Clean Water Act the relevant statute of limitations is Colorado's (two years).
- And in en banc news, the Fifth Circuit no longer needs to consider en banc whether the Consumer Financial Protection Bureau's single-director structure violates Article II of the Constitution and the Constitution's separation of powers, because the Supreme Court held that it does, like, two years ago.
- And in more en banc news, the Ninth Circuit will reconsider its decision preliminarily enjoining a 2019 California law that required private detention facilities in the state, including those used by the feds, to close (while allowing some private facilities used by the state to remain open).
- And in amicus brief news, IJ is asking the Michigan Supreme Court to hold that the suppression of evidence gleaned from an unconstitutional search is every bit as apt a remedy in civil code enforcement proceedings as it is in criminal proceedings. Indeed, it's only remedy available to the defendants in the case, who could face $500 per day fines after Long Lake Twp. officials secretly flew a drone over their property for three years (without a warrant) to gather evidence of what they consider to be a public nuisance (junk cars and other items that are not visible to the public).
Victory! Last month, the North Carolina Court of Appeals unanimously ruled that a Wilmington ordinance barring more than 2% of residential properties in the city from being used as short-term vacation rentals, parceled out via lottery, falls afoul of state law. Which is great news for IJ clients David and Peg Schroeder, who spent $75k renovating a townhome before the city passed the ordinance and who then lost out in the lottery. The ruling is now final, and this week the city council voted to refund over $500k in fees collected while the ordinance was in effect. Read all about in the Port City Daily.