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.
Do you like warrantless, suspicionless, unannounced, nonconsensual business inspections? If so, we deeply regret to inform that the Ohio Dept. of Natural Resources is no longer doing those. Read all about it.
- Family owes $1.2k in property taxes on their home but can't afford to pay. Ontario County, N.Y. officials puts a lien on the home and, after several months, seeks to foreclose. The property owners file for Chapter 13 bankruptcy protection. Meanwhile, the county sells the home for $22k, satisfies the $1.2k lien, and pockets the difference. The homeowners challenge the sale as a fraudulent conveyance. Second Circuit: As is their right. The sale would give the county a windfall at the expense of other creditors.
- During the pandemic, the Port Authority of Allegheny County (just renamed Pittsburgh Regional Transit) required employees to wear masks but forbade political messages such as "Black Lives Matter" or "Trump 2020" on them. A violation of public employees' free speech? Third Circuit: If the messages were disruptive, maybe not. But to prove that you need this thing called "evidence." No need to disturb the preliminary injunction.
- Under federal civil rights law, plaintiffs can recover attorney's fees as a prevailing party. But winning a preliminary injunction doesn't make you a prevailing party—even if the government then hastily repeals the law you're challenging after you win the injunction—because, says the Fourth Circuit . . . well, because we said so 20 years ago and we're stuck with it. Concurrence: I'm just going to go ahead and ghostwrite your en banc petition for you.
- Texas University System: Another challenge to our use of race in college admissions?! Surely we can just rely on our 2016 victory before the U.S. Supreme Court in Fisher v. University of Texas to resolve this. Fifth Circuit: Nope. This case—brought by Students for Fair Admissions—brings different claims and seeks different, prospective relief. So the courts will just have to hear it.
- Practice tip from the Fifth Circuit: "When a lawyer has an outstanding motion but hasn't heard from the court for a long time, prudence would advise double-checking to make sure the motion is still pending. No news may mean that the court already ruled on the motion, and the time to appeal is ticking away." Relatedly, this municipal official from Pharr, Tex. can no longer appeal being denied qualified immunity and must proceed to trial. The bench ruling against him started a 180-day clock that had long since run out when he filed his appeal 412 days later.
- Upset with the officiating at a San Antonio, Tex. high school football game, assistant coach orders his players to blindside the ref. The ref sues the coach and the school. Fifth Circuit: Can't sue the school because the coach went rogue. But you can definitely sue the coach even though it was students who did the actual tackling.
- Circuit Split Watch! Does the First Amendment prohibit government officials from blocking citizens on their Facebook pages? The Second, Fourth, Eighth, and Eleventh Circuits have said yes, "focusing on a social-media page's purpose and appearance." But the Sixth Circuit parts ways, choosing instead to "focus on the actor's official duties and use of government resources or state employees." All of which counsel against a finding of state action in this case.
- After the Biden administration chose to abandon the Trump-era "Public Charge Rule," under which would-be immigrants were required to prove that they would not need public assistance, several states wishing to defend the ruled tried to intervene in ongoing federal litigation against it. Seventh Circuit: But they were untimely; there's no reason the states can't file their own lawsuit challenging the policy's recission.
- The FBI raids homes and offices of Milwaukee investment fund managers and seizes, among other things, rare gems and minerals. But the investigation concludes (and the gems are returned) without criminal charges being filed. Seventh Circuit: If you exclude the allegedly false statements an FBI agent made on the search warrant application, there's still enough there for probable cause. So qualified immunity for the agent from the fund managers' Fourth Amendment claims. But we'll note that, in this circuit at least, you can definitely still sue federal agents for damages for garden-variety Fourth Amendment violations (like excessive force and fabricating evidence).
- Allegation: Harrison County, Mo. sheriff forced woman into sexual relationship and into selling drugs for him—and then had her prosecuted once she ended the relationship. (The sheriff died by suicide after (sealed) criminal charges were filed against him.) Does Missouri state law immunize the woman's probation officer, who allegedly invited the sheriff to attend their probation meetings, where the sheriff threatened her not to disclose the relationship. Eighth Circuit: It does not; it merely says the state must indemnify the probation officer if there's a damages award.
- Allegation: St. Louis police are instructed that when an individual is cuffed, they shouldn't be held prone. Nor should officers apply pressure to their back even if they are thrashing (because that could be attempting to breathe, not resist). Nonetheless, these officers pinned a cuffed, shackled arrestee facedown for 10 to 15 minutes, putting pressure on his back. He dies. Eighth Circuit (2020): Qualified immunity. SCOTUS: You know what, take another look. Eighth Circuit (this week): Qualified immunity. There's no clearly established law on prone restraint (and we're not making any).
- One of the world's largest undeveloped deposits of copper sits below a national forest an hour east of Phoenix, Ariz., and in 2014 Congress approved a land swap that will allow it to be extracted. Which will destroy Oak Flat, an area that is sacred to Apache American Indians. (It is going to sink 1,000 feet.) Will that "substantially burden" their religious exercise and fall afoul of the Religious Freedom Restoration Act? Ninth Circuit (over a dissent): A substantial burden is when the gov't imposes some kind of penalty on someone or denies them a gov't benefit because of their religion, which isn't happening here.
- Allegation: Bicyclist rides away from Mesa, Ariz. officer who'd tried to stop him for lacking a front light. The officer then pulls his SUV in front of the cyclist and stops abruptly, sending the cyclist tumbling to the pavement, dislocating a wrist, among other injuries. Excessive force? Ninth Circuit: Maybe, but not clearly established excessive force. So qualified immunity. Concurrence: It was deadly force! But not clearly established deadly force.
- Ninth Circuit: It's clearly established that officials shouldn't deceive a court in child custody cases, nor should they conspire to remove a child from a parent's custody without a court order in the absence of imminent danger. So no qualified immunity for this Kauai County, Haw. police employee who allegedly did both of those things, resulting in an 11-year-old being taken from her mother for 21 days and given to her father (who allegedly raped the mother when she was underage, conceiving the girl).
- At fourth trial, man is convicted of beating his wife to death, in large part based on bitemark evidence and blue fibers underneath the wife's fingernail that supposedly came from the husband's shirt. But wait! The expert who gave the bitemark testimony later recants, and evidence arises suggesting a San Bernardino County, Calif. investigator planted the fibers (i.e., they were missing from crime-scene photos, not discovered during the autopsy, and only arose during the investigator's later examination). The man's conviction is tossed, and he walks after nearly two decades behind bars. Ninth Circuit: His claims against the investigator ought to go to trial; his claims against the county are undismissed as well.
- Fort Myers Beach, Fla. bans all portable signs. All of them. And, noting various instances of sign-holding—including the 2000 election recount, Black Lives Matter, and the Tea Party—the Eleventh Circuit rules that the ban likely fails intermediate scrutiny under the First Amendment even though it is content neutral.
- Doraville, Ga. "relies heavily on revenues from fines and fees." In other words, if people aren't convicted, the city can't pay its employees. Like, for instance, the municipal court judge, who can be let go for not generating enough revenue. Does that violate the due process rights of those brought before him? Eleventh Circuit: We'll credit the city's in-court representations that it can't fire the judge at will, even if the city's code and Rule 36 admissions say otherwise. All is fine in Doraville. Concurrence: It's actually a really close case, and the city is now judicially estopped from firing judges without good cause. (This is an IJ case; in 2016, one of our clients was fined and put on criminal probation (a condition of which required her to avoid alcohol!) after code enforcers spotted cracks in her driveway.)
- Wreal, LLC launches FyreTV, distributed through the FyreBoXXX. It streams, well, exactly what you think it does. Amazon later launches fireTV and seems to perhaps confuse a fan who tweets at Wreal "Did you guys just merge with Amazon?" Is this an example of the doctrine of reverse-confusion trademark infringement? Eleventh Circuit: Let's apply this not-at-all-confusing seven-part test and send it to a jury.
- And in en banc news, the Fifth Circuit will reconsider its decision to dismiss a challenge to an executive order requiring federal workers to be vaccinated against COVID-19.
Victory! In 2020, SWAT officers in McKinney, Tex. stormed a home that a fugitive had forced himself into (after evading police in a high-speed chase), shooting tear-gas grenades through windows, blowing a hole in the garage door, and driving through the front door. The destruction left the innocent homeowner, Vicki Baker, in financial ruin; the city and her insurance both refused to pay for the damage. (The raid also left her daughter's dog permanently deaf and blind.) But this spring, in a first-of-its-kind ruling, a federal district court said that police action can amount to a Fifth Amendment "taking" that requires just compensation (and also that other courts that have ruled against property owners in similar straits are disastrously wrong). And last week a jury ruled that the city must pay nearly $60k to make Vicki whole. Click here to learn more.