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.
New cert petition: Does the Fourteenth Amendment require meaningful review of restrictions on the right to engage in a common occupation? IJ says yes, and that Kentucky's restrictions on home health agencies, which are preventing a pair of entrepreneurs from opening a new agency that caters to Louisville's large Nepali-speaking community, don't make a lick of sense. Click here to learn more.
- FCC officials suspect some radio broadcasts are secretly paid for by the Chinese and Russian governments. So it issues an order requiring licensed broadcasters to independently verify that sponsors of broadcasts aren't having foreign governments foot the bill. The only problem, says the D.C. Circuit, is that that's "not the law that Congress wrote." The FCC has authority to require licensees to ask employees and sponsors about foreign governments, but not to force licensees to do independent research.
- Congressional committee tries to subpoena then-President Trump's personal accounting firm. Now on remand from SCOTUS, the committee's chairwoman has explained in more detail why they want what they want: to craft new legislation on presidential self-dealing. D.C. Circuit: There's still separation-of-powers concerns, but the post hoc explanations are okay and the subpoena is basically okay. However, we'll narrow it a bit. Concurrence: Wow, these are big issues. How 'bout one of you try and go en banc? (Note: Justice Ketanji Brown Jackson arguably "rode circuit" in this case as she was a member of the panel at argument and was a justice by the time it was issued (although she did not participate in the writing of the opinion)).
- Does it violate the Second Amendment for the NYPD to deny a Bronx man a license to have a shotgun or rifle in his home because of his 2011 arrest, which did not result in a conviction, for domestic violence? The district court said no, but we're sending it back down for another look, says the Second Circuit, in light of a recent Supreme Court ruling.
- Anonymous internet users upload instructions for 3D printing gun parts and accessories with marks belonging to Everytown for Gun Safety, an anti-gun-violence group. Protected parody? Trademark infringement? Second Circuit: Back to the district court to determine if defendants can proceed anonymously.
- Last year, Suffolk County, N.Y. police sent letters threatening to arrest and criminally prosecute owners of a particular firearm if they failed to turn them in within 15 days. Second Circuit: No one's actually been arrested or had their guns forcibly taken yet, so these plaintiffs don't have standing to sue.
- Journalist makes Freedom of Information Act request of the Secret Service for records relating to President-elect Trump prior to his taking the oath of office on January 20, 2017. Second Circuit: Those aren't "agency records," as neither a presidential campaign nor a presidential transition is an "agency." And even if they were, they'd be covered by the "unwarranted invasion of personal privacy" exception to FOIA.
- Like newborn babes swaddled in the cashmere blanket of ignorance, a panel of the Fourth Circuit finds it "perplexing" that the government would oppose the vacatur of a 2003 firearms conviction for a man whom the government concedes is actually innocent. But though we may never know why the government does the things it does, here, at least, it is the criminal defendant who prevails.
- In the summer 2019, Corpus Christi, Tex. police sought to round up gang members with outstanding criminal warrants. One of those gang members was described only as a Hispanic male who, at some unidentified point, had been seen riding a bicycle in the "area of Leopard and Up River" with large handlebars. Police spot a man in the area matching the meager description, stop him, and frisk him. Uh oh! It's the wrong guy, but he is a felon in possession. The man moves to suppress the handgun, arguing there was no reasonable suspicion for the stop. Fifth Circuit (over a dissent): He's right. We've rejected even more extensive descriptions as too scanty to justify an investigatory stop.
- Though court orders man who is incompetent to stand trial to be civilly committed or released, he remains in Clay County, Miss. jail for six years (until local news starts asking questions). Fifth Circuit: And not only that, but the current and former sheriffs lied to the court about it. No qualified immunity for the sheriffs.
- In 2014, Texas prison officials banned Nation of Gods and Earths religious group from gathering. Officials: We have a new policy that lifts the ban. The case is moot. Fifth Circuit: On the contrary, the policy merely allows these inmates to apply to congregate. Judge Ho, concurring: "We cannot allow government officials to unilaterally avoid judicial review—and especially not when they openly admit that their change in behavior is strategic rather than sincere."
- Officers flag down a motorist leaving a Lake Charles, La. rest area. A search reveals contraband. Was flagging him down a stop for Fourth Amendment purposes? District court: No, officers didn't physically step in front of his car. He was free to go. Fifth Circuit: It was a stop, not least because state law requires motorists to stop at an officer's command. Take another look at that motion to suppress.
- Fifth Circuit: You can't vacate a five-year-old judgment just because the SEC bullied you into giving up your First Amendment rights as a condition of settlement. Concurrence: True enough, but bullying people into giving up their First Amendment rights sure seems like the sort of thing that's bound to have consequences one day.
- District court: Coryell County, Tex. jail officials responded to a disruptive detainee with reasonable, measured force, removing the force once she was restrained. Qualified immunity. Fifth Circuit: Yeah, that's the defendants' version of events, which we can't review at the summary judgment stage. Plaintiff's facts show the detainee was tapping her hairbrush on her cell door, so officers repeatedly pepper sprayed her, punched her multiple times, and then, even after she was handcuffed and prone, pressed their 230- and 390-pound bodies into her back and neck until she was lifeless. On that version of events, no qualified immunity.
- In 2017, Detroit officials—who have a habit of forcing people into foreclosure over inflated tax bills—mailed out 260k property tax assessments that tell homeowners they have at most four days to challenge those assessments or forever lose their chance at judicial review. The deadline does get extended, but officials do not individually notify homeowners, relying instead on an announcement at a city council meeting and local news coverage. Might that violate due process? Congress passed a law saying local tax issues like this have to go to state court, says the Sixth Circuit, unless there is no clear path to review in state court. Which (over a dissent) there isn't here. Case undismissed.
- Does it violate the First Amendment for Westfield, Ind. officials to bar a large digital billboard from being put up on private property in town? The district court said yes, because the city's distinction between on-premises and off-premises signs allows officials to discriminate based on the content of speech. Seventh Circuit: But, since the Supreme Court just torpedoed that line of reasoning, this goes back down for another look (and another chance to develop the record).
- St. Paul, Minn. police officer Heather Weyker, who was also a deputized federal task force agent, framed dozens of innocent people in the course of fabricating a non-existent interstate sex-trafficking ring. One of her victims, who spent years in federal custody before being acquitted, sues, arguing that Weyker's lies violated the Constitution. Eighth Circuit: You can't sue her in her capacity as a federal agent because federal agents have de facto absolute immunity. And you also can't sue her in her capacity as a local officer because her fake investigation was a federal one. (N.B.: This week, in a case involving a different victim, IJ asked the Supreme Court to tell the Eighth Circuit to take another look at Weyker's federal immunity.)
- Is there a First Amendment right to record the police? Tenth Circuit (2021): Can't say. Won't say. Tenth Circuit (2022): There absolutely is, and it's a clearly established right. So no qualified immunity for this Lakewood, Colo. officer, who allegedly shined a flashlight into citizen-journalists' phones and cameras and, after being told to knock it off by a fellow officer, then drove his patrol car straight at the journalists, sped away, did a U-turn, gunned it back toward a journalist, swerved to avoid hitting him, and then blasted his air horn.
- After a Utah Highway Patrol Trooper pulls over an out-of-state driver for a suspected window-tint violation, he lets the man go with a warning. But then the trooper contacts a buddy on the force and tells him to "go stop" the driver in order to walk a drug dog around the car. The second trooper does so. The dog alerts on the car, which leads to a search, but no drugs are discovered and the trooper again releases the man with a warning. The man sues, pro se, alleging the successive stops violate his Fourth Amendment rights. District court: Qualified immunity. Tenth Circuit: Take another look at that one.
- Kansas contractors set up a scheme where they'd funnel money to noncitizens without work permits to hang drywall for other companies. Feds prosecute contractors under a statute making it illegal to "encourage" or "induce" illegal entry or presence in the U.S. Is the statute overly broad, making a "substantial amount" of protected speech illegal, regardless of what the defendants themselves ever said? Tenth Circuit: Yep. This law must take the overbreadth L. Dissent: That's pretty strong medicine when we can just read the statute another way.
- Dunedin, Fla. septuagenarian leaves town for about two months to settle his mother's estate, and the man he paid to mow his lawn dies unexpectedly. Without notice, city officials fine him $500/day for overgrown grass, a total of $28.5k plus interest. He can't come up with the money on time, so officials seek to foreclose on his home. An excessive fine? A violation of due process? Eleventh Circuit: No, state law allows up to $500/day fines for municipal violations, and he should have raised his due process claims in state court. (This is an IJ case.)
- And in amicus brief news, IJ is asking the Supreme Court to tell lower courts to start exercising the full extent of their jurisdiction over federal agencies instead of intuiting an unspoken congressional desire to let agencies proceed unchecked.
Friends, Iowa's Constitution begins with some stirring words: "All men and women are, by nature, free and equal, and have certain inalienable rights — among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness." But do those words actually mean anything? Regrettably, last month the Iowa Supreme Court said no, applying rational basis review and pretty much rendering the clause judicially unenforceable. It's a real shame. Click here to learn about the rights-protecting history of the clause.