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.
Friends, come and see us at UCLA on Thursday, June 30th, for a very special event—a live recording of the Short Circuit podcast preceded by the unveiling of an interactive new study that identifies clearly established constitutional law sufficient to overcome qualified immunity in each federal circuit. The study also catalogues and grades state-law immunity doctrines, giving a fuller picture of each state and circuit's civil rights ecosystem. RSVP today.
- D.C. gov't worker alleges her numerous transfer requests were denied on the basis of sex—similarly situated male employees had their requests granted. D.C. Circuit (sitting en banc, with dissents): That is indeed something Title VII forbids, and we overrule our precedent saying plaintiffs also have to show they suffered "objectively tangible harm," a high bar that does not appear in the statute.
- Juror 103: I work at a state hospital and I'm concerned that, if I vote guilty, I'll get blowback at work from patients who are inmates. Prosecutor: We want to strike Black Juror 103 because, being Black, he is concerned that if he holds the Black defendant guilty, he'll get blowback at work. R.I. Supreme Court: Sounds race-neutral to us. First Circuit: But not to us. Retry the defendant within 90 days or let him go.
- In the wake of the public outcry following the death of George Floyd, Connecticut legislators nullify provision of collective bargaining agreement that shielded state police officers' disciplinary files from public disclosure. (The agreement expires this month.) A Contracts Clause violation? Second Circuit: States can impair contracts so long as it's in the public interest, which this is. Denial of preliminary injunction affirmed.
- Visually impaired plaintiffs in New York file hundreds of substantively identical lawsuits, alleging that merchants' gift cards violate the ADA because it's impossible to distinguish the cards by touch. But they seem to be playing fast and loose with their allegations, which sometimes refer to nonexistent stores or claim they want to go to Banana Republic for its food. Second Circuit: These allegations are so implausible that the plaintiffs lack standing. Concurrence: Of course they have standing (they just lose on the merits).
- New York restaurant worker sues her former employer. "Not so fast," says the employer, "You signed an arbitration agreement." "I absolutely did not," avers the worker. District Court: That's just a self-serving denial, not evidence. Second Circuit: Ahem. It's a SWORN self-serving denial, which is enough to raise a dispute over whether the worker actually signed the arbitration agreement.
- Allegation: Cornell physics professor is up for tenure when an aggrieved former student accuses him of rape years earlier. He's subject to an investigation in which he is not fully informed of the allegations against him and the university refuses to interview witnesses he identifies. He is denied tenure. He successfully appeals the denial, but the dean overrides the appeal. A professor involved with the tenure review later tells him that "the faculty had considered [the] accusations to have been false and malicious, but also said that the faculty would take no action, saying, 'Can you imagine what would happen if we took action against a blonde, female student? Twitter would explode and the entire department would be labeled bullies. We don't want that.'" Second Circuit: We hold that Title IX allows faculty members to bring allegations of gender discrimination, and these allegations are more than sufficient.
- Pennsylvania will count your mail-in ballot if you write the wrong date on the envelope, but not if you write the date in the wrong place (or forget to write it at all). Third Circuit: Which is exactly the sort of picayune nonsense prohibited under the Materiality Provision of the Civil Rights Act.
- Philly cop pulls over black man riding a dirt bike, shoots and kills him as he runs away. The cop is charged with third-degree murder (charges remain pending). One of the investigating cops believes the charges to be unfounded and that prosecutors knowingly lied to the grand jury to get the indictment. Allegation: After finding out that the investigating cop wanted to expose her wrongdoing, one of the prosecutors retaliated by filing baseless criminal charges against him. Third Circuit (2020): Some of his claims may proceed. Third Circuit (2022): As we said, some of his claims may proceed. Prosecutorial immunity doesn't protect the prosecutor from all of his claims.
- The Supreme Court has pretty clearly said that states can't discriminate against interstate commerce—except, maybe, sometimes, if they're regulating alcohol. Fourth Circuit (over a dissent): And this North Carolina law barring out-of-state retailers from shipping wine directly to consumers is maybe one of those times!
- In 2018, a state trial court ordered New Orleans to repay traffic fines it had illegally imposed. And so New Orleans . . . doesn't? It just doesn't pay. Which stinks, says the Fifth Circuit, but not everything that stinks violates the Takings Clause.
- Jasper, Tex. police arrested known drug user (who maybe ingested a baggie of drugs on his way to the jail) for public intoxication. Over the next 34 hours, his condition worsened; he vomits black liquid at least 3 times, cries out to officers at least 62 times, and moans in agony at least 70 times. Said one non-defendant officer: "I should have looked, but, you know, oh well." Fifth Circuit: "[W]hether the officers refused [the detainee's] requests, or merely disregarded them," they violated his rights. No qualified immunity.
- The Tennessee Legislature does not like preachers ordained over the internet officiating weddings, so much so that in 2019 they amended the law to make it a felony punishable by up to six years in prison for an internet preacher to sign a marriage license knowing they were ineligible to do so. The Universal Life Church Monastery and several of its ministers sue. Sixth Circuit: And they have standing to sue at least a few of the defendants, so the case can go forward.
- In 2013, Kansas City, Mo. officer shoots, kills man suspected of cell phone theft (wrongfully it turns out). Police dept. to public: It was an armed standoff! The officer heroically saved fellow officers' lives! Officer's statement to police dept. right after the shooting: So, he wasn't necessarily armed when I shot him, but I saw him with a gun moments earlier, and he ignored my orders to show his hands. Other officer on scene: He did not have a gun; he was complying with my orders; and I didn't hear the first officer give any orders. Third officer: I didn't see a gun either. Other witnesses: We didn't see a gun. Man's friend: The gun that the first officer says he saw was in fact in my car the whole evening; the deceased did not possess it at any point. Eighth Circuit: Assuming disputed facts in plaintiff's favor, as we must at this stage of the case, qualified immunity for the first officer.
- In 2013, a U.S. citizen of Eritrean descent files a lawsuit challenging his inclusion on the No Fly List, which he claims occurred after he refused to act as a confidential informant to the FBI. Three years into the litigation, the gov't informs the court he's been removed from the list and moves to dismiss for mootness. Ninth Circuit (2018): That's voluntary cessation; the case remains live. Feds: But we removed him from the list. Ninth Circuit: (2022): That's. Voluntary. Cessation.
- Denver man sentenced to 48 years for a brutal rape and assault, after the victim identified him following a medicated dream in which she relived the attack. More than 20 years later, another man admits to having sex with the woman and beating her. The convicted man gets a new trial and is acquitted—exonerating him after 28 years in prison. (He gets $2 mil for the years he spent wrongfully locked up.) He sues, alleging a multitude of claims including malicious prosecution, destruction of good evidence, and creation of bad evidence. Tenth Circuit: No constitutional violations here.
- And in en banc news, the Sixth Circuit will not reconsider its recent precedent putting it on the side of a 4–4 circuit split that makes it somewhat less difficult for pretrial detainees to sue corrections officials for deliberate indifference—here a guard who allegedly turned a blind eye to plaintiff being labeled a snitch and beaten by other detainees. Dissentaling, Judge Bush asks the Supreme Court to step in.
- After Fort Worth, Tex. officer violently arrests family for "piss[ing him] off," internal affairs officers recommend the officer be fired because he "made a false arrest, he lied in his affidavit and used excessive force." Yikes! The IA officers are then put on detached duty and demoted; one is suspended for three days. (The offending officer was suspended for 10). Can they sue the city under Texas's Whistleblower Act? Texas Supreme Court: Nope. Their recommendations weren't a "report," so the Act doesn't apply. (Ed. note: As amicus, IJ is urging the Fifth Circuit to reconsider its grant of qualified immunity to the officer.)
- Charges against Alabama man accused of setting fire to his own property for the insurance payout are dropped after fire marshal admits the man did not actually confess, as the marshal had claimed. Can the man sue the marshal for malicious prosecution under state law? Alabama Supreme Court: Indeed! Since the suit is against the marshal in his personal rather than official capacity, sovereign immunity does not apply. (Click here for a discussion of the ruling, which, while heartening, probably doesn't help Alabama's grade of "F" for its immunity and accountability practices.)
In June 2020, René Quiñonez, an activist who owns a screen-printing company in Oakland, Calif., shipped a batch of boxes containing COVID-19 face masks with custom-print messages like "Stop Killing Black People" to customers around the country. But the masks did not arrive on time, and customers who put in their tracking number saw only this cryptic message: "Alert," "Seized by Law Enforcement." Which seriously hurt René's business when the word got out and lots of his partnerships dried up. Eventually, and only after his congresswoman got involved, USPS officials gave an explanation: The seizure wasn't because of the packages' political content, but because they looked like they might contain illegal drugs. Which doesn't make any sense because they were just plain brown boxes, no different from millions of other pieces of mail. So this week, René and IJ sued the USPS officials who seized and searched his mail without a warrant, probable cause, or reasonable suspicion. Click here to read more.