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. It's not too late to register, RSVP today!
- Apparently, there's a whole industry based around Mexicans' crossing the border on business visas to sell blood plasma. Last year, Customs and Border Protection decided to put a stop to it. The plasma companies: This new visa rule will exsanguinate our industry. The district court: This isn't really about you. Dismissed for lack of standing. D.C. Circuit: No, it's definitely about them.
- Originally granted asylum at nine years old, Somali asylee faces removal after a slew of drug-related offenses. But wait, he argues, I still need protection, and the Board of Immigration Appeals erred when it held otherwise. First Circuit: It does appear that the immigration courts failed to consider all evidence of the risks of torture if deported, so this needs another look.
- John Doe: I want to marry either my biological parent or my adult child (unclear which), but the prudes in my home state of New York have criminalized incestuous marriages. Second Circuit: Dude. You haven't even proposed yet. Who knows if your child (or parent) will even say yes? No standing. (NB: Readers may recall Doe's lawyer as the practitioner who set the record for wildest (and possibly shortest) oral argument in the Second Circuit in 2019 and who has since enjoyed numerous run-ins with the Supreme Court's rules on amicus briefs.)
- Petersburg, Va. prison guard is convicted of making a false statement to law enforcement (but not for sexually assaulting a prisoner, for which he was also indicted). At sentencing, the court enforced the statutory maximum sentence for providing a false statement related to a sexual assault and varied upward, imposing the same 54-month sentence the guard would have received if convicted of sexual assault. Guard: That whole "related to a sexual assault" piece wasn't put before the jury, so the sentence can't stand. Fourth Circuit: Sure, that was a constitutional error, but the jury would have reached the same conclusion either way, so the error was harmless.
- Ecuadorian employees are demanding a fair share of their foreign employer's near-billion-dollar settlement check from the Ecuadorian government. Ecuador's law requires employer-employee profit sharing, after all. Fifth Circuit: The settlement came after a year of extreme loss caused by the government's expropriation, so the company didn't actually have profits and doesn't have to share nothin'.
- A grand jury indicts a Louisiana man for making one type of false statement on a firearm-purchase form, but at trial the judge instructs the jury that they can convict him for making either of two types of false statements. The man appeals—pro se. And wins a reversal. On plain-error review! What?! Yes. Fifth Circuit: The district court plainly erred by allowing a constructive amendment to the indictment.
- Fifth Circuit: Introducing testimonial hearsay of non-testifying witnesses violates the Confrontation Clause. And since we've had to say this a lot as of late, "we are concerned that the government has repeatedly failed to take the lesson."
- After Prentiss, Miss. man tells police officers he shot a guy, they arrest him. The man's aggravated-assault case is eventually nolle prossed, after which he sues. Man: The officers lacked probable cause because when I told them I shot that guy, I also told them I shot him in self-defense! District court: That is such a bad argument that you must pay the government $79,978.69 in attorney's fees. Fifth Circuit: Indeed.
- Is kicking a fellow legislator out of your caucus and cutting off party resources (because she accused the police of wrongdoing) a "legislative act"? Sixth Circuit: Sure is. The members of Ohio's House Democratic Caucus are absolutely immune from suit. (Eds. note: If accusing government officials of wrongdoing is cause for exile, you should start calling us Aristotle now.)
- Prisoners say that prison officials had a uniform policy of conducting prison-wide shakedowns that were deliberately punitive in violation of the Eighth Amendment. Prison officials say the uniform shakedown policy wasn't really all that bad. Is that enough to establish commonality for class certification? Seventh Circuit: Look, a "uniform policy" sounds pretty common to us. The district court can figure out which one of you is right on the merits.
- Responding to a 911 call for a robbery by a man carrying a large knife, a Lawrenceburg, Tenn. police captain comes across the man in a parking lot and says they need to talk. The man declines, unsheathes his knife, waving it as he walks around, and stops 30 feet from the captain. He repeatedly tells the cop to shoot him, which the cop does after the man takes a step. The man dies. District court: Qualified immunity. Sixth Circuit: Not so fast. No one was within 30 feet of the man, who had calmed down in the moments before he was shot, and the other officer at the scene testified that he didn't see a reason to shoot the man. A jury might find the captain used excessive force.
- Sunless, Inc. sells Mystic Tan Solution to be used in Mystic Tan booths, which it deems the Mystic Tan Experience. Indeed, the booths are designed to accept no solution other than its own. After growing tired of the Mystic Tan Solution, a salon chain jury-rigged the booths to operate with its own branded spray tan solution. Sunless: This will confuse customers who expect a genuine Mystic Tan Experience! Sixth Circuit: It seems that it will not, given that the chain doesn't sell the "Mystic Tan Experience." No preliminary injunction.
- In which the Seventh Circuit makes perfectly clear that standing is totally independent of the merits of a claim and that these would-be immigrant plaintiffs absolutely, positively, no doubt have standing. (Oh, and totally lose.)
- Seventh Circuit (en banc): Institutional liability under Title IX requires both actual knowledge of past sexual misconduct and deliberate indifference to it, which means the school's knowledge that a middle-schooler seemed infatuated with a security assistant doesn't make it liable for the assistant's subsequent sexual abuse of the girl. (Concurrence: There's an awful lot of potentially actionable misconduct that isn't "sexual misconduct," so maybe we should hold our horses on the broader holding here.)
- Arkansas man is sentenced to 40 years for threatening to assault and murder FBI agents, invoking white supremacy. If 40 years sounds like a lot, the defendant agrees. But the Eighth Circuit does not. While the punishment may exceed nationwide norms, the district court properly considered the sentencing factors and took the specific circumstances of the case into account, so it did not abuse its discretion.
- Foie-gras producers don't like the district court's ruling that California's foie-gras ban is constitutional. California doesn't like the district court's ruling that California law permits out-of-state foie-gras sales to Californians. But the Ninth Circuit (over a partial dissent) says the district court's ruling is good and the parties should both be forced to eat way, way more of it.
- California law prohibits adults under the age of 21 from buying long guns unless they first get a hunting license. It also bans young adults from buying semiautomatic centerfire rifles unless they are police or in the military. Firearms enthusiasts challenge the prohibitions under the Second Amendment, seeking a preliminary injunction. Ninth Circuit (over a dissent): No injunction as to the long guns, because the exception for hunting licenses is easy to satisfy. But the almost total prohibition on semiautomatic rifles is likely unconstitutional.
- After two Washington state hunters are caught with approximately $200k worth of animal trophies and meat illegally hunted across the border in Canada, Washington state officials offer them a deal: Forfeit the animal parts and stay out of trouble for a year, and we'll drop the charges. The brothers agree, but then sue for the return of the animal parts. Ninth Circuit: Estop right there.
- After being arrested for driving under the influence, Utah man twice asks police to kill him. Upon arrival at jail, he informs officials that he will kill himself if placed in a cell. When later asked if he was contemplating suicide, he says yes. Nevertheless, the man is removed from suicide watch and, the following morning, hangs himself in his cell. Tenth Circuit: Qualified immunity.
- It's true that the First Amendment generally protects the right to record police, but when police are dealing with a woman with an "altered mental status" who is freaking out specifically about your presence while filming, you'd better listen when police tell you to back off. So says the Tenth Circuit in a pro se lawsuit brought by "Stray Dog the Exposer."
- Last year, Florida enacted voting rules that were then challenged by the NAACP, the League of Women Voters, and other groups. District court: The changes were intended to make it harder for minorities to vote. Permanently enjoined. Eleventh Circuit: Un-enjoined. Legislatures are assumed to act in good faith, and federal courts really aren't supposed to change the law close to elections. So the changes remain in effect while an appeal is pending. [Eds. note: Spotted! A rare sighting of the neologism concurral—a concurrence in the denial of rehearing en banc.]
- In which a Florida attorney sues a non-existent corporation, gets a default judgment because the non-existent corporation can't respond, and then seeks a writ of execution against a real company. Eleventh Circuit: The arc of the moral universe is long, but it bends toward sanctions.
- And in en banc news, the Fourth Circuit will reconsider its characteristically cordial decision on the False Claims Act's scienter requirement.
- And in amicus appearance news, next week IJ will argue to the Nevada Supreme Court that ordinary people can sue the state government for violating their state constitutional rights, and that the court should decline the state's invitation to create new immunities under state law that would prevent a woman from suing prison officials who (against policy) subjected her to an unconsented, unproductive strip search while visiting her boyfriend, with no option to leave the prison instead. (An IJ case, involving Nevada Highway Patrol's confiscation of $86k in cash from a motorist, is on hold pending the outcome.)
This week, the Arizona Court of Appeals ruled in favor of IJ client Jerry Johnson. Jerry was traveling to Phoenix, Ariz. to buy a semi-truck for his transportation business when airport police stopped him, searched his belongings, and seized the $39,500 Jerry brought with him for his truck purchase. The trial court held that Jerry was not the owner of the money—and, therefore, could not challenge the seizure—because he had not shown his innocent ownership of the cash. This, the appellate court held, imposed a requirement on Jerry to prove his own innocence, violating due process and Arizona law. Jerry's case will now head back to the trial court where he will be able to defend against the government's unjust seizure of his lawfully earned cash.