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 on the Short Circuit podcast: A landmark, watershed, and very salubrious ruling from the Michigan Supreme Court on implied rights of action under the state constitution. And also, a starkly different holding from the Tenth Circuit in the wake of Egbert v. Boule.
- Guantanamo prisoner is tortured for information, which the government then includes in legal filings in the prisoner's criminal case. No problem, say the feds, we're not using it at trial, just for discovery matters. That's cool, right? On further reflection, the feds remove the info from the filing and promise not to use the torture-obtained info in future filings. D.C. Circuit: So the prisoner's challenge to the use of the info is variously moot, unripe, without standing, and inappropriate for mandamus.
- Forget about the judicial reasoning in this run-of-the-mill wrongful arrest case from the D.C. Circuit, what on earth is hiding under the redactions?
- Ever fail to click a couple of boxes on an overly confusing computer program and as a result pay an extra $894 mil in principal when you only meant to pay the interest? Well, a guy at Citibank did, and when he and his colleagues realized their mistake the next day—and immediately sent detailed notices asking for the money back—a number of the lenders said "that's funny, but screw you the money's ours now." Were they wrong to keep it? District court: No, life moves fast sometimes. Second Circuit: Yes, they had the money an incredibly short time before the notices went out and should have known something funny was up. Concurrence: This is obvious and why did we take a year to decide? "Possession is not ten-tenths of the law."
- Former biopharmaceutical-company employee: As a condition of my employment, I had to give the company a ton of sensitive personal and financial information, which was later accessed by a hacking group and distributed on the dark web. Class-wide damages and equitable relief please. District court: No standing. Third Circuit: She's seeking damages for the release of her personal information on the dark web and she claims, among other things, that her former employer breached its employment agreement with her by failing to secure her info. Sure seems like a controversy to us. Concurrence in the judgment: Agreed, and we could have said so in far fewer words. (Also, Third Circuit, we're capitalizing "Sister Circuits"?)
- Texas City, Tex. fire dept. official who does not have the authority to detain anyone nevertheless detains two emergency medical technicians over a permit violation. ("You are detained. You are not allowed to leave. … [G]et the F back into the vehicle.") District court: Could be an unconstitutional seizure, but there's no prior case on point. Qualified immunity. Fifth Circuit: Reversed. Before an official can raise QI as a defense, they must show they were acting within the scope of their authority—an "oft-overlooked threshold requirement." [Ed.: At this very moment, IJ is asking the Supreme Court and asking the Tenth Circuit to remind courts of this requirement.]
- Twelve days of Christmas are enough to get you more partridges than you probably wanted, but, says the Fifth Circuit, twelve days of a preliminary injunction before your case is mooted by legislative reform are not enough to make you a "prevailing party" for purposes of recovering fees.
- Allegation: Middle-aged man grabs seven-year-old by the neck after the boy accidentally dropped raisins in front of the man's home. When a Fort Worth, Tex. officer arrives, he asks the boy's mother "Why don't you teach your son not to litter?" She does not take kindly to this; after some shouting and jostling, the officer arrests her and her 14-year-old daughter. And then, after the situation had de-escalated, the officer arrests an 18-year-old daughter who had been filming the incident, shoving her against his patrol car, ripping the phone out of her hands, handcuffing her, and then—when she declined to give her name—wrenching her arm behind her back causing "excruciating pain." (Internal affairs officers recommend firing the officer for using excessive force and lying in his affidavit. Instead, he's suspended 10 days.) Fifth Circuit (February): Qualified immunity for everything. IJ amicus brief: Surely not for the arm wrenching? Fifth Circuit (this week): "Nothing in our opinion should be construed as suggesting, much less holding, that officers may use pain maneuvers to force non-resisting individuals to respond to questioning." The 18-year-old was actively resisting arrest. Qualified immunity.
- Allegation: Boyd County, Ky. jail staff used excessive force putting inmate into a restraint chair and then tightening straps around his neck until he passed out. As it happens, the DOJ conducted an investigation at the jail, noting that an inmate died of blunt force trauma while in a restraint chair and that at least two other inmates were strapped down with their genitals exposed to passersby. District court: Ah, but the plaintiff can't sue the municipality unless he shows a pattern of mistreatment. Which he can't do because the DOJ report is inadmissible. Sixth Circuit (unpublished): It's admissible, and (over a dissent) a jury might see a pattern.
- Allegation: Memphis police subject man to forcible anal cavity search on street in full public view. He tries to obtain public records relating to the incident, but the city conceals the info until after the one-year statute of limitations expires. City: Shouldn't have missed that statute of limitations! Sixth Circuit (unpublished, over a dissent): The man's suit can proceed.
- Debt collector sends Missouri bankruptcy attorney a debt-collection letter for one of his clients. Except the client isn't the lawyer's client at all. The lawyer's never heard of the person. So (as one does) he sues the debt collector for violations of the Fair Debt Collection Practices Act. Eighth Circuit: Yeah, the debt collector may have violated the FDCPA, but the statute exists to protect consumers, and you—random lawyer dude—aren't the kind of plaintiff who can sue to enforce it. Dissent: Actually, the statute unambiguously gives the random lawyer dude a cause of action.
- Following his arrest for a three-month burglary spree that nabbed about $5k worth of property, 21-year-old Arizona man turns down a plea deal and goes to trial. He's convicted of 25 counts, with all but two of the sentences to be served consecutively. A total of 292 years in prison! Is this punishment so grossly excessive that it violates the Eighth Amendment? Ninth Circuit (over a dissent): Might be wrong, but none of the individual sentences are unconstitutionally excessive, and the Supreme Court has never said we should add them all up, so no habeas for this guy.
- Ninth Circuit (2013): Talk therapy is, for First Amendment purposes, not speech but instead a form of medical conduct, no different from brain surgery. Supreme Court (2018): That Ninth Circuit case, specifically, was wrongly decided because it treated speech by professionals different from speech by nonprofessionals. Ninth Circuit (2022): But we've already established that talk therapy is not speech, it's conduct, like brain surgery, so we reach the same conclusion.
- Allegation: At DHS officials' instigation, ICE agent is charged with inflating her overtime pay. The criminal case lasts three years until an Orange County, Calif. prosecutor tells the judge it's bogus. District court: But she can't sue the DHS officials under the Federal Tort Claims Act; officials need leeway to do their investigations and present evidence as they see fit; they get discretionary function immunity. Ninth Circuit: Reversed. They don't have discretion to make up false allegations, lie under oath, and doctor evidence. Also Ninth Circuit (unpublished): Nor was she required to file her constitutional claims while the criminal case was still pending. Some of those claims are undismissed as well.
- Allegation: Man dies from complications related to alcohol withdrawal at Uintah County, Utah jail after staff failed to give him his medication and sat by while his condition worsened. Defendants: Okay, but none of these earlier cases about deliberate indifference to an inmate's medical needs were about alcohol withdrawal. Tenth Circuit: And yet the law is clearly established. No qualified immunity, and the county may be on the hook too.
- What is the secret to eternal youth? If 92-year-old Senior Judge Gerald Bard Tjoflat is any guide, the trick is to voluntarily elect to participate in Eleventh Circuit en banc cases about Article III injury-in-fact (and have your panel dissent vindicated by a majority of the full court).
- Do the FAA's new air traffic control measures around south and central Florida airports keep people from getting a good night's sleep? Eleventh Circuit: Doesn't matter. There's no such thing as a right to sleep (unless you're in prison).
- And in en banc news, the Fourth Circuit will not reconsider its order denying the defendant (a prominent Baltimore attorney convicted of money laundering) release pending appeal. Dissent: There's no relevant factual difference between this motion and that from former Virginia Governor Bob McDonnell, which we did grant.
- And in amicus brief news, IJ is asking the Eleventh Circuit to let a U.S. business and its Bolivian customer challenge the forfeiture of $9k cash that the customer sent to the business via courier—a courier who decided to smuggle some cocaine into the U.S. on the side. As part of his plea deal, the courier agreed to forfeit the cash. The business and its customer want to argue that their transaction was entirely lawful, but the district court dismissed their petition on the basis that they lack standing because of perceived deficiencies in their (perfectly adequate) initial pleadings, which were filed within the strict 30-day deadline. Worse, the court said that—unlike all other civil pleadings—forfeiture petitions can't be amended after the filing deadline. But there's nothing in the statute that imposes these heightened pleading requirements on property owners, and this case should be decided on the merits.
Friends, Brandy Davis is an experienced eyelash extension specialist from Texas who recently moved to Oklahoma. But Oklahoma won't let her work as an eyelash extension specialist unless she spends hundreds of hours obtaining a cosmetology or esthetician license—licenses that require no training in eyelash extensions, only lots of training in other things Brandy does not wish to practice. That does not make sense, and the Oklahoma Constitution protects Oklahomans' right to earn an honest living free from senseless regulations, so this week IJ and Brandy sued the Oklahoma State Board of Cosmetology and Barbering. Click here to learn more.