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: In 2018, the Supreme Court unequivocally rejected the so-called "professional speech doctrine," under which lower courts had been giving mere rational basis review to restrictions on speech instead of the usual, robust scrutiny that the First Amendment demands. And yet! The Eleventh Circuit recently resurrected the doctrine in all but name to uphold a Florida law that makes it a crime for anyone but a licensed dietician to give dietary advice. That won't do. (And if you won't take our word for it maybe you'll find this amicus brief by several noted scholars, including Erwin Chemerinsky, persuasive.)
New on the Short Circuit podcast: The very best podcast episode on the Montana Supreme Court and the Montana Constitution that has ever been recorded this week.
- Friends, last week we shared a ruling of the D.C. Circuit in a wrongful arrest case that contained some puzzling redactions. This week, the D.C. Circuit released an unredacted version of the opinion. Turns out the redactions were mostly about how compliant the victim was and how little cause there was for arresting her.
- On April 24, 1996, Congress enacted the Mandatory Victims Restitution Act (MVRA), significantly extending the enforceability of restitution orders—from 20 years after entry of judgment to 20 years after release from imprisonment. Twelve days earlier, a New Jersey man commits an armed bank robbery. He's convicted in May the following year, ordered to pay $20k in restitution, and remains in prison today. Can the gov't seize his prison trust account to satisfy his outstanding restitution? Third Circuit: Nope. That would violate the Ex Post Facto Clause. Dissent: The Ex Post Facto Clause prohibits increasing someone's punishment, but because of the time value of money, extending the time to pay actually decreases the punishment.
- Allegation: El Paso, Tex. officers are summoned to home by neighbor's report of a riot in progress. Instead, they find it's "just kids talking loudly" in the backyard. The teens decline to speak without an adult present and leave. The officers follow and, a block away, search a 16-year-old who lives at the home, finding a key to the house in her bra. The officers return to the house, enter, and find her mom helping to bathe two other daughters. Officers: We had to get into the home to see if anyone was having an emergency. Fifth Circuit (unpublished): No qualified immunity.
- What's the difference between a short ton and a long ton? This Fifth Circuit opinion, finding no problem with the fees big ships must pay use the recently (and ongoingly) deepened and widened Sabine-Neches Waterway, answers that question (but steers clear of what kids these days mean by shit ton).
- The right to travel internationally is not fundamental and thus restrictions on that right are not deserving of strict scrutiny, says the Fifth Circuit. Which is not good news for this gentleman who had his passport revoked over a seriously delinquent tax debt.
- Service members sue the Air Force over its COVID-19 mandate, claiming it has given out thousands of waivers for health and administrative reasons but none for religious reasons, even though the regulations allow for all three kinds of waivers. District court: Looks fishy, here's a preliminary injunction. Sixth Circuit: Certainly does, and the emergency request for a stay is denied. We'll expedite the PI appeal, though.
- Two Michigan state troopers make national news when they're arrested for stealing a bicycle during Mackinac Island bar crawl. One of the troopers: I had no idea the bike was stolen, which the officer who requested the arrest warrant knew and omitted. Sixth Circuit (unpublished): If true, could be malicious prosecution. No qualified immunity.
- Between 1978 and 1998, an Ohio State University athletic team doctor sexually abused over a thousand students. District court: Because of the two-year statute of limitations none of these 110 victims can sue the university under Title IX. Sixth Circuit: The claims are timely if the victims didn't know Ohio State was responsible until a 2018 independent investigation revealed the extent of the abuse and cover-up. Dissent: The statute of limitations began to run when the victims knew they were injured, and the abuse alleged is so obscene that they plainly knew decades ago.
- Police ultimately had probable cause to arrest a gentleman for impersonating an officer, but, says the Seventh Circuit, the Whitestown, Ind. officer who handcuffed him beforehand is not entitled to qualified immunity because you can't just go handcuffing folks willy-nilly during Terry stops. There's rules.
- Sadly, however, the gentleman above, who, it turns out, did not impersonate an officer, gets no succor out of the Indiana Tort Claims Act for the damage to his car while it was in impound. Because, says the Seventh Circuit, police who engage in even egregious misconduct while carrying out legitimate law enforcement activity are exempted from liability under the Act.
- You can't get your case into this humble little roundup unless you file a notice of appeal following final judgment from the trial court. Thankfully, the rules were amended last year to clarify that you don't have to specify every single ruling you're challenging—you just need to appeal the final judgment and all the other judgments can come along for the ride. Tenth Circuit: Unfortunately for this Colorado inmate, the change wasn't retroactive, so his failure to specifically note his appeal from a partial summary judgment earlier in his case lets those defendants off the hook.
- A couple years ago a South Carolina circuit judge did something deeply reasonable and remarkably correct, holding that the state's civil forfeiture laws are unconstitutional because, among other reasons, property owners must prove their innocence (even when the gov't doesn't put forth any evidence of guilt) and are not given prompt post-seizure hearings, meaning owners must wait months or years for the return of improperly seized property. Sadly, this week the South Carolina Supreme Court reversed, holding that it is for the legislature and not the judiciary to rein in the state's well-documented forfeiture abuse. (This is an IJ case.)
- And in en banc news, the Eighth Circuit will not reconsider its ruling granting qualified immunity to Des Moines, Iowa police who are alleged to have racially profiled a Black driver. Two judges dissent from denial, arguing that it's high time we set some clearly established law on the matter.
- And in further en banc news, the Ninth Circuit will not reconsider its ruling that there's nothing unconstitutional about California banning prisoners who fought wildfires while incarcerated from becoming full-time firefighters upon release. (This is an IJ case.)
Earlier this year, Mauldin, S.C. officials rezoned their Main Street in hopes of promoting private development. The change means most of the businesses there (a mayonnaise factory, auto repair shops, a swimming pool repair company, a rental car business) are now nonconforming but grandfathered uses that can continue operating indefinitely. Arbitrarily, however, officials singled out one type of business for special mistreatment: The ordinance requires U-Haul rental businesses to close by the end of the year. Which, in addition to being lowdown and nasty, and also violating due process and equal protection, is a taking of private property without any (much less just) compensation in violation of the South Carolina Constitution. Click here to learn more about IJ's latest lawsuit.