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.
Friends, Short Circuit Live is heading to New York City. Please join us on October 26th for a live recording of the Short Circuit podcast focusing on the Second Circuit, featuring Maaren Shah of Quinn Emanuel, Bruce Green of Fordham Law, and Alexander Reinert of Cardozo Law (who incidentally has a new paper out that blows SCOTUS's common-law justification for qualified immunity to smithereens). Click here to RSVP.
- Back in 2019, the House Ways and Means Committee asked the Treasury Department to turn over the federal tax returns for one Donald John Trump. Is there a valid legislative purpose behind the request? D.C. Circuit: Yes. The information is relevant to the efficacy of the Presidential Audit Program. Cough 'em up.
In 2016, D.C. officials crafted new regulations requiring child care providers to obtain college credentials in early childhood education. Day care providers and parents: Which will throw a lot of us out of work and raise the cost of child care (that is already the highest in the nation) while providing no actual benefits to children. D.C. Circuit: It is rational to make it illegal to take care of 2-year-olds without first passing college-level math courses. (This is an IJ case.)
- Affixing a bump stock to a semiautomatic weapon allows a shooter to fire multiple times with a single "pull" of the trigger; the bump stock manages recoil so that the trigger reengages continuously until the shooter releases their grip on the barrel or they're out of ammo, allowing them to fire an estimated 400 to 800 rounds per minute compared to 180 without. D.C. Circuit: Which makes it an illegal machine gun. [Ed.: By the by, this might be the first time your humble staff has seen a pro se amicus referenced.]
- Would-be developer of affordable apartments (half set aside for seniors) spends years working with Islip, N.Y. planning officials on traffic, wetland, and other issues. But the town board declines to hold a scheduled vote in 2016 after residents roundly, rowdily object to the types of folks who'd move in. District court: So the town never gave a final decision on the project (notwithstanding the town attorney's alleged statements to the contrary), and the developer's suit isn't ripe. Second Circuit: Vacated and remanded.
- More than 10 years after her 18-day jail sentence (for harassment), Linden, N.J. woman's conviction is reversed. She files a Section 1983 claim for the prosecutorial and judicial misconduct (related to the improper appointment of a private prosecutor) that led to her conviction in the first place. Is she too late? Third Circuit: No! Her case was Heck barred until her conviction was reversed, which means the statute of limitations wasn't running either.
- In circumstances that can charitably be described as "not ideal," man is found passed out in his car with an empty bottle of Hennessey by his side, a marijuana blunt in the ashtray, and $69k in cash in the trunk. But does that make him a drug dealer? And should the government be able to forfeit his cash? Fourth Circuit: Not necessarily. We reject the gov't's argument "that lawful citizens do not carry around large amounts of cash." Indeed, "not using a bank does not necessarily make one a criminal." The case goes to a jury. (Note: IJ filed an amicus brief in this case and participated at oral argument).
- Allegation: Texas A&M employee is fired for complaining about HR hassles. Wrongful termination in violation of the Fair Labor Standards Act? Judge Costa, concurring: "It says something about how much qualified immunity dominates section 1983 litigation that everyone in the district court—the experienced lawyers and judges alike—assumed the immunity exists whenever a public official is sued." Anyhoo, the Fifth Circuit sends the case back down for a look at whether QI applies to FLSA claims.
- As USPS mail carrier delivers package to Lafayette, La. home, her thumb slips into a pre-existing hole in the package; she thinks she feels marijuana. Out of concern for nearby children, she then lifts an already torn flap, and, after doing some internet research on her phone, now suspects it's meth. (She's right the second time.) Suppress the evidence? The Fifth Circuit says no; the Fourth Amendment only applies to law enforcement, and she wasn't doing law enforcement. Concurrence: Why are we saying the Fourth Amendment doesn't apply when we have all these exceptions to the exclusionary rule to work with?
- Man and woman are shot to death in their Texas home and their bodies lit on fire; the fumes asphyxiate their three young daughters upstairs. Police home in on a friend of the man's who had been shooting pool in the house that night and had been having an affair with the woman. No physical evidence links the friend to the murders, and he has an alibi. The state relies heavily on two factors to obtain a conviction and death sentence: jailhouse snitches and the presence of the friend's semen in the woman. District court: The prosecutor (now a true-crime TV host) suppressed evidence that the snitches were lying and that semen can survive in a mouth for 72 hours. Habeas granted. Fifth Circuit: Reversed and death sentence restored. Habeas is a high bar that you do not meet.
- Summoned to prevent a suicide, El Paso, Tex. officer sees man on his tiptoes with his hands around a rope that is around his neck and hanging from a basketball hoop. The man declines to show his hands; the officer tases him. The man dies. Officer: It was dark. He could have had a weapon. Fifth Circuit: Qualified immunity. There's no case from this circuit that clearly establishes this is unconstitutional (nor is there one now). Also, even if there were such a case it might not count; Supreme Court opinions might be the only cases that clearly establish anything.
- Adrian, Mich. officer impounds a driver's car for bad plates and no insurance. When the driver's dad comes to pick her up, he and the officer argue; the dad yells "fuck you" and flips the officer off. The officer (dropping several f-bombs himself) then repeatedly tases dad and punches and kicks him while he's prone and saying that he's not resisting. Sixth Circuit: No qualified immunity.
- Michigan inmate dies of a fentanyl overdose—the third overdose in his unit in three days. His mom alleges prison officials violated Eighth Amendment by allowing a dangerous drug-smuggling ring to operate, involving a prison-guard collaborator and drugs tossed over the prison fence in basketballs. Sixth Circuit: Seems like the officials were pretty deliberately indifferent to people dying of bad drugs, some of these claims should not have been dismissed. Dissent: "If ever a claim was designed for qualified immunity, this is it."
- Motorist drives to end of driveway, stops, and turns into the street. Yikes! An Elyria, Ohio officer pulls him over and discovers contraband. Was there probable cause for the stop? Officer: Indeed, state law required the motorist to stop before the end of the driveway, in the "sidewalk area" where an unmarked sidewalk crossed the driveway. Sixth Circuit: Maybe the law says that. Maybe it doesn't. No need to suppress the evidence.
- Milwaukee man is exonerated by DNA evidence after spending 24 years in prison. He sues the officers involved in his arrest, alleging, among other issues, that they used "unduly suggestive identification procedures" that led to him being falsely picked out of the line-up. Seventh Circuit: It's definitely possible that they were unduly suggestive, but not clearly establishedly so. Qualified immunity granted.
- In 1969, an Illinois political candidate and a voter teamed up to file a federal lawsuit challenging Illinois's tradition of rampant political patronage, and in 1972, they secured a consent decree. Now fifty years later, it's time the federal courts retire that decree, says the Seventh Circuit (over the protestations, remarkably, of the same two original plaintiffs).
- Hartland, Wisc. officials pass an ordinance that caps the number of new sex offenders who can move within the village's idyllic borders. Sex offender: That feels like retroactive punishment in violation of the Constitution's Ex Post Facto Clause. Seventh Circuit: Under binding precedent, you'd be wrong. We've previously said that these kinds of forward-looking laws aren't impermissibly "retroactive" even if they impose legal disabilities based on past misdeeds. But you know what? That binding precedent is wrong. So it's overruled. Case remanded for the district court to evaluate whether the village's ordinance was punitive.
- Several Anoka County, Minn. residents sue a school district and a teachers' union over agreement that will allegedly result in the district paying teachers for time spent on the union's political activities. Eighth Circuit: Generally taxpayers don't have standing to sue over a policy they don't like simply because it impacts the public fisc. But these plaintiffs are suing as municipal taxpayers (rather than as state or federal ones), and there's an exception for that. Case undismissed.
- At supervised-release-revocation hearing, federal judge forces man (initially imprisoned for threatening to kill a federal judge) to choose between representing himself and being represented by appointed counsel who doesn't know anything about his case and admitted to being "as dumb as a doorbell or a doorknob." Eighth Circuit (over a dissent): Which violated his right to counsel.
- Distressed by the content of a college course discussing Islamic terrorism, Islamic student sues for violations of his First Amendment rights. Ninth Circuit: But we can't find any cases where the content of a college course was found to violate the religion clauses, so qualified immunity. Dissent: The student lost credit for refusing to agree with statements like, "Terrorism is justified within the context of jihad in Islam." There's enough here to go to a jury.
- States love banning non-residents from gathering petition signatures almost as much as federal appellate courts—here, the Ninth Circuit, joining the Fourth, Sixth, Seventh, and Tenth—love striking those prohibitions down.
- Air Force general allegedly sexually assaults colonel in her Simi Valley, Calif. hotel room. (He later becomes vice chairman of the Joint Chiefs of Staff). Ninth Circuit: Usually service members can't sue over injuries sustained in the service, but since they were at a private hotel and attending a conference hosted by a civilian organization with comparatively few military officials, this gets past a motion to dismiss.
- Allegation: Mesa, Ariz. high school teacher begins relationship with student over Snapchat, which becomes sexual when the student turns 16 and then continues for four years. Ninth Circuit (unpublished): Alas, the student brought her case two years too late. A state statute extending the statute of limitations for child-sexual-abuse claims doesn't apply based on our precedent, which we, as a three-judge panel, cannot reverse.
- In 1981, a Utah jury convicted a virulently racist serial killer of federal civil rights violations for killing two black men jogging in a public park. (He was later executed in Missouri for ambushing a synagogue there.) Key testimony at his Utah trial came from a 16-year-old witness who was hit with shrapnel. Thirty-five years later, she sues the prosecutor who had prepared her for the trial, alleging that he'd repeatedly raped her. Utah Supreme Court: The state law passed in 2016 to extend the statute of limitations for child-sexual-abuse claims is unconstitutional. Tenth Circuit: Which means her case is toast.
- Lawyer: Colorado criminalizes disclosing any information contained in records of child abuse or neglect. I represent parents in child abuse cases and this violates my First Amendment rights. Colorado: We have to do this to get money under the federal Child Abuse Prevention and Treatment Act. Tenth Circuit: "It is no excuse for a state that is violating the constitutional rights of its citizens to say 'the federal government is paying us to do it.'"
- Man invents the "Device for the Autonomous Bootstrapping of United Science," or DABUS, and then asserts that the program itself then invented two inventions. The man fills out paperwork to patent them and doesn't list his name as the "inventor," but DABUS's. Can an artificial intelligence entity get a patent? Patent and Trademark Office: No. District court: Also no. Federal Circuit: No again. The Patent Act says "individual" and that means a human one.
- And in en banc news, the D.C. Circuit will not reconsider its decision that members of the House Oversight Committee were entitled to documents showing how much former President Trump was benefitting from the Trump Organization's lease of the Old Post Office building.
- And in amicus brief news, IJ is asking the Supreme Court to grant cert and figuratively murder this Fifth Circuit opinion, which holds that New Orleans property owners who were awarded $10.5 mil by a state court after officials took their property for a flood control project can't go to federal court to force the city to pay up. Bizarrely, under Louisiana's constitution such judgments are merely unenforceable IOUs. But the federal Constitution trumps the state's, and it provides a remedy here. (We discussed the Fifth Circuit's opinion on the podcast.)
In a decisive victory for good order and common sense, this week the Arizona Supreme Court unanimously ruled that when state officials demanded that IJ client Greg Mills comply with an (onerous and unnecessary) licensing rule or shut down his business, that right there was enough to let Greg file a challenge to the rule under the Arizona Constitution. The lower courts had dismissed the case, holding that he needed to wait for the agency to finish administratively prosecuting him—a veritable license for officials to delay judicial review indefinitely. "Arizona law makes clear people don't have to live under a cloud of uncertainty when their rights are threatened," says IJ-AZ Managing Attorney Paul Avelar. "[The] decision is yet another rebuke of government attempts to threaten people's rights and then deny them a timely day in court." Click here to learn more.