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.
This week, the Supreme Court ruled that Customs and Border Protection officers have de facto absolute immunity from constitutional claims for damages. But the ruling leaves the door open ever so slightly to Fourth Amendment claims against federal officers doing domestic policing unrelated to the border or national security. The fate of a pair of pending IJ cert petitions will shed more light on that. They involve an officer who fabricated a sex-trafficking scheme and had our wholly innocent, then-teenage client imprisoned for several years and another officer who went rogue, tried to shoot our client in the head, and used his authority to have our client detained. Click here to read our just-filed supplemental brief.
- A federal statute prohibits the FDA from changing the definition of "butter." Which, say the appellants, means the FDA's prohibition of the interstate sale of unpasteurized butter is unlawful! D.C. Circuit: It's still butter, guys. It's just illegal butter.
- Environmental group sues the Secretary of Commerce, alleging that government regulations designed to reduce the accidental bycatch of dusky sharks won't achieve its goals. D.C. Circuit: The agency had sufficient evidence to believe that they would (and, by the way, plaintiff "should be reassured, although assurances are not needed, that we have never used or even owned a rubber stamp, that we have never, ever considered an allegation alone to be a fact, and that we have never credited a 'supposition' that was lacking in support").
- ATF agents place video camera on utility pole outside suspect's home, giving them a 24/7 live feed that can be viewed remotely and which they operate for eight months without a warrant. Is that a "search" under the Fourth Amendment? First Circuit, sitting en banc: Three of us say no. And three of us say yes, but the agents can't be expected to have known that (and no matter that the gov't didn't initially raise its good-faith argument below). So the lower court order suppressing the evidence is reversed.
- Do recent narrow interpretations of Congress's enforcement power under the Fourteenth Amendment affect older caselaw on the Thirteenth Amendment? No, says the First Circuit, in upholding a Nazi creep's hate crime conviction. Unlike the Fourteenth, the Thirteenth reaches private conduct, which is a whole different thing.
- After being convicted of 266 counts for his role in the 1998 bombing of U.S. embassies in Africa—in which 224 people were killed—al Qaeda operative is sentenced to 264 concurrent terms of life imprisonment, to be followed by, among other things, a consecutive 30-year term of imprisonment (for using an explosive device during a crime of violence). Man: In the wake of a 2019 Supreme Court decision, my 30-year sentence is no longer valid. (Or more precisely, the conviction giving rise to it is no longer valid.) Second Circuit: Come back once you've served your life sentence and we can talk about the 30-year sentence.
- Allegation: Though required by state law to report suspected child abuse, several North Carolina public school officials (including the district superintendent) turned a blind eye to an elementary school teacher who, among other things, put an autistic first grader in a trash can, prevented him from getting out, and told him that "if he acted like trash, [she] would treat him like trash." Fourth Circuit: Concerning and disheartening! But North Carolina law recognizes that officials can't do their jobs fearlessly, vigorously, and effectively if they have to spend time defending against suits like this; state-law "public official" immunity applies.
- Bald Head Island, N.C. safety officers get fired after the brass catches wind of their group chat, which included such bangers as a meme that "depicted a man being hit in the face with hot dogs and stated that 'Jeese's [sic] [Lieutenant] interview went well.'" But were the officers defamed by public statements that the group chat had resulted in complaints against the officers (which it had not)? Fourth Circuit: Indeed they were.
- Allegation: In 2017, Mahnomen County, Minn.'s highway engineer lowered the weight limit on some county roads dramatically and, less than an hour later, pulled over trucks belonging to a family-owned construction business that he held a grudge against—while letting every other newly overweight vehicle pass unmolested. Eighth Circuit (2021): No other official has previously been held liable for engaging in a personal vendetta against private citizens in precisely this way. Qualified immunity for the engineer. IJ cert petition (this week): The court skipped over a prerequisite: Before officials can raise qualified immunity as a defense, they must first show they acted within the scope of their authority, and an engineer pretending to be a cop certainly can't. Click here to learn more.
- California uses prisoners to fight wildfires. But then when they are released, it holds their criminal records against them and bans those same people from getting full-time jobs as firefighters (by barring them from getting an EMT certification, which is necessary to fight fires full time). Plaintiffs: We've demonstrably turned our lives around. The ban is irrational—probably on its face because there are so many crimes that have nothing to do with fitness to be certified as an EMT, but certainly as applied to us. Ninth Circuit: It's not for judges to second guess what legislatures do. (This is an IJ case.)
- Immigrants detained solely due to their immigration status and neither charged with, nor convicted of, any crime, allege that the overseers of their private, for-profit detention facilities forced them to perform labor against their will and without adequate compensation in violation of state and federal law. A California district court certifies three plaintiff classes related to the various claims. Ninth Circuit: And all of the classes were appropriately certified.
- After a Florida lawyer hired by the Phoenix, Ariz. Eparchy of the Byzantine Catholic Church files a lawsuit against the Eparchy's health benefits plan, three bishops of the church complain that he is greedy and incompetent, resulting in the Pope firing him. He sues the bishops for defamation in Arizona. District Court: No jurisdiction over the out-of-state bishops. Ninth Circuit: They purposefully directed their messages to Arizona, establishing jurisdiction.
- Denver schoolteacher is beaten to death on New Year's Day 2000. A then-14-year-old boy with cognitive deficiencies is ultimately convicted of her murder and sentenced to life in prison. Years later, DNA tests on items supposedly tying him to the scene come back not quite supporting that. His conviction is tossed in exchange for his pleading guilty to accessory after the fact, and he's released. He sues. Detectives: Qualified immunity, plus his claims are barred because he was convicted of accessory. Tenth Circuit: His claims may proceed.
- Plaintiffs: The Oklahoma dental board's refusal to grant us specialty licenses violates both antitrust law and the Constitution. Tenth Circuit: They seem downright eager to give them to you now, so your case is moot.
- The ministerial exception prohibits courts from inquiring into employment disputes between religious bodies and their ministers. But does the collateral order doctrine grant federal appellate courts jurisdiction to consider interlocutory challenges to denials of summary judgment under the ministerial exception? Tenth Circuit: It does not. So the religious school that fired a teacher after he gave a presentation on faith and race will have to proceed to trial. Dissent: Does so. And the undisputed evidence shows that the teacher—also the Director of Student Life (i.e., chaplain)—was employed as a minister at the time he was fired.
- Woman is hired as director of animal services for Lake County, Fla., which is in the process of changing its animal shelter into a "no kill" shelter. On her way out the door to attend evening classes, the director tells her supervisee to try to find placements for some of the animals. The supervisee instead orders 23 or 24 of the animals euthanized. When this is discovered, the new director is fired, and the sheriff issues a press release blaming the now-former director for the euthanized animals, resulting in her receiving death threats. Eleventh Circuit: No reason to disturb the jury's $100k defamation award.
- In 2018, Charlottesville, Va. officials gave a local freelance writer and bestselling novelist an unwelcome surprise: an overdue tax bill. City: The tax code may not list "writers" among the types of businesses who are subject to the business license tax, which generally applies to (and pays for costs associated with) storefront businesses. But there's a catchall provision at the end that applies. Pay up. Virginia Supreme Court: Nope. If you want to tax someone, the law has to be clear. (This is an IJ case.)
- The Indiana Constitution gives the governor the power to call a "special session." It otherwise gives the Indiana legislature the power to "fix by law" when it meets. But can the legislature pass a "law" that delegates the ability to call a special session to a smaller "council" of legislators, which would call a special session via a "resolution"? Indiana Supreme Court: No can do, a "law" is a "law," not a "resolution." And the Indiana Constitution specifically gives the power to the governor. (For a little more on what this all means, do please check out this effervescent blog post.)
Friends, the right to criticize the government is one of our most fundamental rights. So a pox on East Cleveland, Ohio officials for abusing their authority and retaliating against 74-year-old William Fambrough, an activist and frequent critic of the mayor, police chief, and city law director. Last year, police officers enforced a never-used ordinance and impounded William's van, part of a series of incidents (that also included multiple police visits to his home) meant to chill his political speech. William used the van to canvass in support of a challenger to the mayor, and the towing caused so much damage that the van was inoperable in the weeks before the election (which the mayor ultimately won). So a pox, we say, and also a lawsuit: This week, IJ filed suit against the city and the officials who ordered and carried out the violation of William's rights. Cleveland.com has the story. Click here to find the complaint.