The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
SCOTUSblog petition of the week: Does the Fourteenth Amendment require meaningful review of restrictions on the right to engage in a common occupation? IJ says not only yes, but also: oh my goodness gracious meaningful review is such a reasonable ask. Perhaps after you read the eminently readable petition you will agree. Click here for more on the case.
- A member of the Fleet Marine Corps Reserve sexually assaults another Marine's wife while moonlighting as a bartender in Japan. He's court-martialed and sentenced to 10 months' confinement and a dishonorable discharge. But wait! The Constitution says Congress may only place "the land and naval Forces" under the jurisdiction of a court-martial, but membership in the Fleet Marine Reserve, though not formal retirement, "is a de facto retirement status." Does that count? D.C. Circuit: Reservists can still be ordered back into service; that's enough for military jurisdiction. Dissent: That may come as a surprise to the nation's two million fully retired service members, who are also subject to recall.
- High-frequency trading occurs at the speed of light and every microsecond counts. Which is why a securities exchange put up a "speedbump" of 350 microseconds (1/11th the blink of an eye) to try to slow down "latency arbitrage" among its traders. Was the SEC's "D-Limit order" approving the speedbump arbitrary and capricious? D.C. Circuit: No. The order's fine.
- There are over 800k drones registered with the FAA, most of which are for recreational use. Due to worries of these little airplanes bumping into larger aircraft and helicopters—and also just falling out of the sky—Congress asked the FAA to develop standards for identifying them. The resulting rule requires all drones to have a "Remote ID" emitted via radio signal. Does the rule allow a warrantless search in violation of the Fourth Amendment? D.C. Circuit: This facial challenge fails. Flying a drone ain't private, the radio signal can only be detected in close proximity to one, and the ID is anonymous. The rule is ok under the APA as well.
- After measles outbreaks in low-vax-rate communities, New York officials ditch religious exemption to vaccine requirement for school children and also tighten the standards for a medical exemption (a doctor's mere say-so will no longer suffice). Second Circuit: And that violates neither the Constitution's substantive due process protections nor a federal law that prohibits discrimination against the disabled. And anyway, kids only need to comply "if they wish to attend a school in the State," so what's the big deal?
- The Privileges and Immunities Clause of Article IV of the Constitution means that states can't discriminate against nonresidents who want to pursue an occupation or acquire property in the state. But surely, says Prince George's County, Md., that doesn't mean we can't discriminate in favor of gov't employees who work in the county, right? Fourth Circuit: Of course it means that. What else would it mean? Come on, guys.
- South Carolina man experienced a childhood of appalling abuse and trauma, repeatedly attempted suicide, and underwent multiple in-patient stays in psychiatric hospitals before committing a string of horrific crimes. Sentencing court: There's no mitigating evidence that he has a severe mental illness, so death penalty. Fourth Circuit: Uh, even under the most deferential standard out there (AEDPA), "the record plainly and unequivocally belies this conclusion." Reversed. Dissent: This is the most deferential standard out there, and since fair-minded jurists can disagree about the correctness of the sentencing court's decision, we must affirm.
- Man pleads guilty to committing a crime of violence while having failed to register as a sex offender (subject to his right to appeal the constitutionality of the law). In exchange, the gov't drops two other counts on which he'd been indicted. He appeals, wins. Feds: But how 'bout them other counts? The agreement never said we couldn't re-prosecute. Fourth Circuit: Not a chance.
- Allegation: After newly elected Castle Hills, Tex. councilwoman (a septuagenarian and the first-ever Hispanic woman to serve) criticized the city manager, his buddies (the mayor, the police chief, and a specially deputized private attorney) get her jailed for bogus violation of a law that is never used to punish the harmless, ordinary conduct they accused her of. Unlawful retaliation? The dissent "makes a forceful case for why the Constitution ought to provide a claim here," says the Fifth Circuit, but no. (This is an IJ case.)
- Allegation: Male Dallas jail officers can get full weekends off, whereas female officers can only get one weekend day and one weekday off. Unlawful discrimination on the basis of sex? Fifth Circuit: Circuit precedent requires plaintiffs to show they've suffered an adverse employment action to proceed under Title VII of the Civil Rights Act of 1964 or its state-law analogue, and these plaintiffs haven't been fired, demoted, transferred, etc. We should probably go en banc about it.
- In early April 2020, a San Antonio, Tex. jokester posts on Facebook that he's paid his COVID-infected acquaintance to lick items in two grocery stores. Turns out it was a hoax, but the ensuing federal charges and 15-month prison sentence are very real. Fifth Circuit: Conviction affirmed. The jokester is covered by the federal statute criminalizing hoaxes about biological weapons. And that statute's constitutional.
- In which the Fifth Circuit's soon-to-be-retired Judge Costa does his level best to enthrall the reader in a $1.5 bil tax dispute between Exxon and the IRS.
- After discovering she's in a same-sex union, Catholic high school in Indianapolis lets a long-time guidance counselor go. Unlawful discrimination in violation of (among other things) the Civil Rights Act of 1964? The Seventh Circuit says no; the First Amendment permits religious employers to hire and fire ministers as they choose. Easterbrook, J., concurring: To call her a minister is "a stretch," but why are we even talking about the Constitution when, properly read, the 1964 CRA doesn't apply to religious institutions at all?
- Following the Jacob Blake shooting, a couple participating in Madison, Wisc. riots poured gasoline along the front of an office building and lit it on fire. They're convicted under the federal arson statute. Seventh Circuit: And Congress did not overstep its Commerce Clause authority in enacting the law.
- Allegation: Aberdeen, S.D. elementary-school teacher routinely abused her special-education students, including locking one child in a small room 274 times over a four-month period, throwing another into the pool after he had declined to swim, and forcibly stripping a third child and putting on his bathing suit after he had refused. Teacher: Qualified immunity! Eighth Circuit: Not on the Fourth Amendment claims.
- The feds charge South Dakota woman with a slate of counts relating to a brutal assault but then reach a plea under which she agrees to plead guilty to one count of robbery in exchange for the government's dismissing the remaining four counts. District court: Not so fast. She did some really heinous stuff and deserves to have the book thrown at her. Plea agreement rejected. Gov't: Okay, well, then we'll move to voluntarily dismiss those extra counts. District court: Nope. Eighth Circuit: The district court was way out of line in second-guessing the government's decision to dismiss some of the counts. Case remanded for the district court to dismiss those counts (where, presumably, the court will have broad discretion to fire the woman into the sun at sentencing if and when she is convicted on the one remaining count).
- On his own time, private citizen who is also a Phoenix, Ariz. police officer circulates content on Facebook that denigrates Muslims. Years later, some muckrakers publicize his posts, and the police dept. determines that discipline (ranging from an unpaid 40-hour suspension to termination) may be appropriate. Unconstitutional retaliation over his protected speech? The Ninth Circuit says that seems unlikely, but the district court should not have dismissed on the grounds that it did. (His challenge to the dept.'s social media policy was
properly dismissed , howeveralso revived in part.)
- The drug company Mylan, maker of the EpiPen, has a near-monopoly on the market for epinephrine auto-injectors used to treat anaphylaxis. Competitor Sanofi, whose product is designed to more comfortably fit in a pocket, files an antitrust lawsuit alleging unfair competition. Mylan's deals with insurance formularies are so good they've been shut out of the market! Tenth Circuit: No liability. "'Competition is a tough weed, not a delicate flower.' – George Stigler"
- Allegation: Guard assaults restrained inmate at Florence, Colo. federal pen out of view of cameras. Can the inmate sue the guard for excessive force in violation of the Eighth Amendment? The Tenth Circuit says no, there's no Constitution in federal prison (unless the claim is for deliberate indifference to a medical need—and maybe not even then). Inmates should file a grievance with the feds' Administrative Remedy Program.
- Courts have blessed the use of surprise, warrantless inspections to enforce regulations of closely regulated businesses like underground mines and commercial trucks, but what about strip clubs? Eleventh Circuit: Yeah, those, too.
- If you're arrested in Cullman County, Ala., for anything other than capital murder, you can be released immediately upon posting bail, unless the sheriff requests a hearing and proves by clear and convincing evidence that you're a "significant flight risk or a danger to the community." But if you're broke, you have to wait for a hearing before a judge, who sets bail with no particular standard of proof. A due process violation? Eleventh Circuit: There are enough safeguards baked into the system for indigent detainees. Dissent: The district court found the system imposed de facto pretrial detention on indigent detainees, and we can't just ignore that finding.
- Tampa, Fla. man brings state law claims against officers who allegedly used excessive force and unreasonably arrested him while executing a search warrant related to animal abuse. (He says his dog had cancer, which caused sores, and was on palliative care.) Are the officers entitled to sovereign immunity under Florida law? Eleventh Circuit: Because there's no plausible allegation that the officers acted with actual malice (which is different from acting without probable cause), they sure are immune.
- Jessica and Jesse Swinger, a married couple who are not swingers, create advertisement for Miami swingers' club using the likenesses of 32 models without consent. A jury awards the models $12.5k to $65k each. Eleventh Circuit: Not enough evidence two of the club's managers were involved. Reversed as to them.
- And in en banc news, the Eleventh Circuit will not reconsider its decision that "incentive payments" made to named plaintiffs in class actions are prohibited by two Supreme Court decisions published in the 1880s, decades before the enactment of Fed. R. Civ. P. 23 (which governs class actions). Four judges dissent from denial, while Judge Newsom writes a "concurral" about why he will not be writing a concurral.
In 2009, a tree fell on Sarah Hohenberg's stately, historic home in Memphis, rendering it uninhabitable. When her insurance company refused to pay for the damage, she took them to court. But while that was pending, her neighbors sued her in Environmental Court—sort of a Star Chamber for code enforcement—a process that bankrupted her, rendered her homeless, nearly resulted in her arrest, and completely ruined her life. (And even after a forced sale of the house in bankruptcy, as of 2021 the house was still in disrepair.) This week, a federal district court took a hard look at the Environmental Court's lack of procedural safeguards (there are no records of proceedings; testimony isn't authenticated; witnesses don't swear to be truthful; people get sent to jail for being unable to afford repairs) and decided to dismiss the case on Rooker-Feldman grounds. Click here to learn more. And then maybe have a gander at Radley Balko's superb journalism on Nashville's similarly constituted Environmental Court.