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.
State constitutions don't have enumerated powers like the U.S. Constitution. On the one hand, that's a dangerous thing. On the other, state constitutions try to compensate by guaranteeing rights even more strongly than the federal version. And a key aspect of that guarantee is judicial engagement. So says IJ's Anthony Sanders in his review, over at Duke Law's Judicature, of the book Who Decides? by Sixth Circuit Chief Judge Jeffrey S. Sutton.
Friends, if you only read one article today about the FBI and U.S. attorneys lying to a judge and seizing over $100 mil. in cash, precious metals, and jewelry from hundreds of people's safe-deposit boxes over unknown crimes and without any probable cause whatsoever, we hope you'll read this one from the Los Angeles Times.
- Allegation: New York regulator threatens insurers who have relationships with the NRA that she'll come down hard on them unless they sever their ties with the gun-rights organization. NRA sues, claiming First Amendment retaliation for its First Amendment protected activities. District court: This case can go forward. Second Circuit: Qualified immunity. It was kind of a threat, but not like a threat threat.
- Allegation: Warren County, N.C. couple live in the woods a mile from the nearest paved road, but the tranquility of their rural existence is shattered in 2017 when an ATV racetrack and recreation park opens on their nearest neighbor's property. District court: Ooh, bummer, but since you want to sue the county over the 2011 changes to its noise ordinance that allowed for the racetrack and the statute of limitations is three years, it's too late. Fourth Circuit (unpublished): On the contrary, there was no injury in 2014; the couple's claims didn't accrue until 2017 at the earliest. Case undismissed.
- Back in 1980, the Supreme Court held that California could prohibit shopping centers from excluding pamphleteers, the state having determined that malls had replaced town squares as an "essential and invaluable forum" for exercising First Amendment rights. Fifth Circuit: Twitter's monopoly on tweets makes them the shopping mall of the twenty-first century. Thus, the Texas law requiring Twitter to host tweets it finds objectionable is un-enjoined.
- Plaintiffs challenging Harris County, Tex.'s felony-bail system can't sue state judges—they're barred from doing so by sovereign immunity. That's fine, say the plaintiffs, we'll just take third-party discovery from the judges. Fifth Circuit: No dice. Although sovereign immunity is generally invoked by state defendants, a major purpose of the doctrine is to "prevent the indignity of subjecting a state to the coercive process of judicial tribunals at the instance of private parties." Having to comply with a subpoena is one such indignity.
- "That federal officers who refuse to identify themselves can spontaneously, and unprovoked, beat an individual nearly to death and be entirely free from civil liability simply because the individual chooses not to waste judicial resources on a frivolous appeal is not compatible with notions of an ordered and civilized society." So writes Judge Clay, dissenting from a Sixth Circuit holding that not appealing the dismissal of one set of claims (which were not considered on the merits) means an entirely different set of claims are barred. It's "a profound and frightening miscarriage of justice." (This is an IJ case. We made a podcast about it. We're going to appeal.)
- Male Wisconsin inmate, a practicing Muslim, is strip searched in view of a transgender male prison guard. He asks that future strip searches be conducted and witnessed only by biological males, alleging that there will be (literal) hell to pay if he allows his nether regions to be viewed by a woman other than his wife. Seventh Circuit: For RLUIPA purposes, all that matters is the sincerity of the inmate's belief. And since he is sincere and an accommodation would be easy, the inmate wins.
- Courthouse News Service is renowned for reporting on civil litigation, suing court clerks to get immediate access to newly filed complaints, and demolishing arguments about Younger abstention. Just wrecking them. In the Fourth Circuit. In the Ninth Circuit. (Not in the Seventh Circuit.) And as of this week, in the Eighth Circuit as well. (Younger abstention is so pernicious we did a podcast about it.)
- Des Moines, Iowa police officers, sued after a suspicionless traffic stop: "[T]here is no clearly established right to drive with a nervous passenger through a high crime neighborhood with a temporary tag that is unable to be read by officers following the vehicle." Eighth Circuit: No dice. And no qualified immunity.
- District court: It was unconstitutional excessive force for an Edmond, Okla. officer to shoot a man three more times after the officer's initial shot stopped the man from barreling towards him. (The man dies.) Tenth Circuit: But not every reasonable officer would have known that. Qualified immunity.
- Pretty much the entire internet has capsule-sized views on the Eleventh Circuit's grant of a stay in the Trump-document-seizure case. All said takes are hereby incorporated by reference.
- Man spends night in Fulton County, Ga. jail after court employees leave some papers in the wrong pile and charges that had been resolved are referred for prosecution. Georgia Supreme Court: Which was an administrative foul up, not a judicial one, so the employees are not shielded by quasi-judicial immunity.
- And in en banc news, the Eleventh Circuit will not reconsider its ruling that a $30k fine over uncut grass is not an excessive fine. (This is an IJ case.)
- And in amicus brief news, IJ is asking the Supreme Court to finally take a keen look at something it has presumed—absolutely wrongly and to the great detriment of the republic—to be true for 70 years: that Congress meant to incorporate the common law into Section 1983 notwithstanding unambiguous language to the contrary.
If you enjoyed the podcast's trip to Montana last week, you'll surely be bowled over to learn that one of the cases featured on the show is now the State Con Law Case of the Week. In a voting rights case, the Montana Supreme Court heartens, tantalizes, and emboldens fans of judicial engagement everywhere by declining to apply federal constitutional standards to the state's constitution—for now. Click here to learn more.