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.
New cert petition: The IRS wants to impose a $2.17 mil civil penalty on an octogenarian from Massachusetts, and she wants to argue that it's a violation of the Excessive Fines Clause. But earlier this year, the First Circuit said there's no need to consider whether the penalty (for failing to timely file a bank-account form) might be a tad excessive because—said the court—the penalty "is not a 'fine'" under the Eighth Amendment. Boom. Case closed. This week, IJ asked the Supreme Court to tell the First Circuit and the IRS (and a bevy of trial courts) to start taking the Excessive Fines Clause seriously. Click here to learn more about the case.
Big Sky friends, Short Circuit Live! is heading to the University of Montana on September 15th for a live recording at the law school. Co-hosted by the Federalist Society and the American Constitution Society, the event will focus on the Montana Supreme Court and will feature Natasha Prinzing Jones of Boone Karlberg P.C. (who argued on behalf of amici in a case you may remember from last week's roundup), Colin Stephens of Stephens Brooke P.C., and Rylee Sommers-Flanagan of Upper Seven Law. Hope to see you there!
- In 2016, the Department of Housing and Urban Development issued a new rule prohibiting the use of lit tobacco products in public housing. The group NYC Citizens Lobbying Against Smoker Harassment sues, alleging that the rule is unauthorized, arbitrary, and multifariously unconstitutional. D.C. Circuit: But it isn't any of those things, so case dismissed.
- After President Biden took office, he ordered OSHA to consider whether any emergency temporary standards (ETS) were necessary to combat COVID-19. OSHA issued an ETS related to healthcare workers, but this soon took a backseat to a second ETS that required vaccination or weekly testing at all large employers. After the Supreme Court struck down the vaccination requirement, OSHA realized it couldn't comply with the required notice-and-comment period on the healthcare ETS and withdrew it. Nurses' unions sought a writ of mandamus, demanding the ETS be reinstated until a permanent rule could be enacted. D.C. Circuit: We don't have that power; after all, OSHA could ultimately decide that no rule is necessary.
- Two brothers convicted of making illicit marijuana available to the good people of Rochester, N.Y. object to marijuana's status as a Schedule I drug with no legitimate medical uses. Feds: You have to petition the DEA to reschedule the drug; no fair trying to do that in a criminal case. Second Circuit: On the contrary, they can bring their constitutional defenses. Unfortunately for them though, they get rational-basis review, so it doesn't matter if there are indeed legitimate medical uses for marijuana. Their four- and two-year sentences are affirmed.
- In 2014, a Pennsylvania man shoots two state troopers, killing one. During the 48-day manhunt, police seize the man's parents' guns. Police don't claim that the parents or their guns were involved in the crime and never use the guns as evidence against the son. Nevertheless, police refuse to return the guns, now eight years after the crime and after the son lost his last direct appeal. Third Circuit: Which is an unconstitutional taking as well as an infringement on the parents' Second Amendment right to keep arms.
- Allegation: "That's a nice medical testing business you have there. Would be a shame if someone told the FTC about these patient records you leaked. But hey, if you pay for our cybersecurity services, this can be our little secret." "We didn't leak these files—you stole them!" "So that's the way you want to play it?" Third Circuit: The now-defunct testing company's defamation claim against the cybersecurity firm can go forward.
- A putative class action alleges that the Virgin Islands gov't has been systematically withholding tax refunds (except from the politically connected) as a way to save money. But! Through merest coincidence, the only named class representative gets her tax refund in the midst of the litigation. Is this crazy, inexplicable and definitely totally random turn of events a class-killer? Third Circuit: Maybe not!
- Allegation: Biloxi, Miss. hospital adds a surcharge to every emergency room patient's bill without any disclosure beforehand. Patient: If I'd known I was going to get hit with the $2.2k surcharge (reduced to $770 after discounts), I would have sought care elsewhere. Fifth Circuit: Our best guess is that under Mississippi law, the hospital did have a duty to disclose. Case undismissed.
- "Imagine if Texas—a state that prides itself on promoting free enterprise—passed a law saying that only those with existing oil wells in the state could drill new wells. It would be hard to believe. It would also raise significant questions under the dormant Commerce Clause." Fifth Circuit: Texas's 2019 law limiting the building of interstate electrical transmission lines to the owners of existing facilities raises similar questions under the dormant Commerce Clause. (Though, naturally, it raises no questions under the Contracts Clause, because that one doesn't mean anything anymore.)
- After trial and two previous trips to the Fifth Circuit, ExxonMobil is slapped with a $14 mil penalty for thousands of Clean Air Act violations at its massive Baytown, Tex. complex. Fifth Circuit: And this time there's nothing to reconsider. Dissent: It might be tedious to require plaintiffs to show how the harms they suffered were caused by particular violations on particular days, but that's what the law requires. And, except for approx. 40 days of the thousands they alleged, plaintiffs did not make that showing.
- Under Texas law, scrap dealers must promptly submit reports of scrap-metal transactions to the Texas Department of Public Safety. Houston scrap dealer fails to submit two dozen reports, is arrested, and ultimately acquitted. He sues the police officer who prepared the supporting affidavit. Claim: The officer omitted from his affidavit the fact that my scrap-metal-reporting software ("Scrap Dragon") was glitchy. Fifth Circuit: No dice. Even if that information had been included, there still would have been probable cause that you violated the reporting law, since you knew of the glitch but didn't bother to submit your reports through a different medium.
- Allegation: Cheatham County, Tenn. officer conducting welfare check at night (at home where someone called 911 twice and hung up) does not identify himself as law enforcement but does shine his headlights at the house and unholsters his gun. When a resident says that he is armed (he's not) and opens the door, the officer fires eight times (hitting no one). Sixth Circuit: A jury might think that was excessive force. No QI. Dissent: Shooting at someone and missing isn't a "seizure" under the Fourth Amendment unless the person submits, which this guy didn't, yelling profanities at the officers and wandering around after.
- After the Supreme Court ruled that sentences of life without parole are unconstitutional for juvenile offenders, Missouri began to allow such offenders to apply for parole after serving 25 years. Eighth Circuit (sitting en banc): And those parole proceedings are not a sham. Dissent: The proceedings are constitutionally deficient. Hearing officers don't give adequate reasons for denying parole, inmates' parole files are secret, and inmates are sharply limited about what they can speak about (for instance, no talking about their rehabilitation)—and part of the majority's reasoning is based on an argument the state didn't make.
- To get an initiative on the ballot in Nebraska, you must get a minimum number of signatures statewide, but you also must satisfy a signature-distribution requirement: Your signatories must "be so distributed as to include five percent of the registered voters of each of two-fifths of the counties of the state." Marijuana-legalization group: That requirement violates the Equal Protection Clause by devaluing the signatures of people in more populous counties relative to those in less populous ones. Eighth Circuit: No preliminary injunction for you. The signature-distribution requirement has a rational basis. Dissent: Seems to me strict scrutiny might be a better fit.
- Libertarians/goldbugs of the nation, rejoice! The Eighth Circuit has just struck down Minnesota's registration and surety requirement for bullion traders for violating the dormant Commerce Clause. Can the return of Liberty Dollars be far behind? (Yes, it can.)
- San Jose, Calif. public high school student group requires leadership to abide by a statement of faith, which includes belief that sex is only okay between a husband and wife. School: That's discrimination, we're pulling your official status. Group: Hey, but you don't enforce your anti-discrimination policy against these other groups who screen for gender and ethnicity. Ninth Circuit: Yeah, that's pretty messed up school, you targeted these guys because of their religious beliefs. Here's a preliminary injunction. Concurrence: I just wanna add that some of the faculty were super mean. Like, unconstitutionally mean. Dissent: Standing?
- Superior, Ariz. officers show up at house with search warrant for a motel room. (They got oral permission from a judge to search the house (after a search of the motel room didn't turn up the drug cache they were looking for) but neglected to physically update the warrant.) Ninth Circuit: So searching the house was unconstitutional, but (over a dissent) that wasn't clearly established until now. Qualified immunity.
- In Voltaire's famous satire Candide, the optimistic Dr. Pangloss espouses the Leibnizian philosophy that "all is for the best in this best of all possible worlds." Philosophically questionable, but true enough for the Candide Group, which successfully invokes California's anti-SLAPP law against CoreCivic, one of the largest operators of private prisons and immigrant detention centers in the United States. A Ninth Circuit panel holds that previous circuit cases applying the California law in federal court are not so irreconcilable with Supreme Court precedent that they must be overturned.
- Atlanta-area federal task force officers shoot suspect and then ignite a flashbang grenade near his body, which he does not react to. Officers: And after that we stopped shooting. He pointed a gun at us, so good shoot. But wait! Audio (from a bystander filming outside the home) reveals an officer fired off an additional burst after the flashbang ignited. Eleventh Circuit: It's a clearly established constitutional violation to shoot an unconscious suspect. No qualified immunity for the post-grenade burst that a jury might find you lied about. (Ed.: No mention of whether one even can sue federal agents for violating the Constitution, something which the Supreme Court has recently thrown into doubt.)
- Allegation: From 2010 to 2018, Burger King franchisees agreed not to hire employees from other Burger King restaurants for at least six months after they left their previous job. Eleventh Circuit: Which might be an antitrust violation. Case undismissed.
Last year, New Yorker Serafim Katergaris discovered that the city had fined him $1k for missing paperwork about a 2013 boiler inspection. One problem: He bought the home in 2014 after the boiler had been removed, so the paperwork would've been required of a previous owner. Serafim explained this, but the city declined to waive the fine. The city also refused to give him a hearing or a chance to appeal. Instead, the city simply demanded that he pay. Unfortunately, this is a common practice for NYC, which frequently demands penalties for supposed violations of its property codes without providing an opportunity to be heard. So this week, Serafim teamed up with IJ to challenge the city's brazen violation of his due process rights. After all, no process cannot be due process. Learn more here.