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: Anthony Novak was jailed for four days and prosecuted for making a fake Facebook page satirizing the Parma, Ohio police dept.—an obvious First Amendment violation! And yet the Sixth Circuit granted qualified immunity to the officers involved, so IJ is asking the Supreme Court to step in and settle a deep split among the circuits on what to do when probable cause rests on speech. Or, better yet, the Court could nuke the doctrine of qualified immunity into the sun. Read all about it at Cleveland.com.
- In 2019, President Trump publicly denied a woman's accusation that he raped her in a department store changing room in the 90s. She sues him in his personal capacity for defamation, but the feds intervene, seeking to substitute the federal gov't as the defendant, which would mean the case is toast (since the feds have sovereign immunity in defamation cases). District court: No dice, feds. Second Circuit (over a dissent): Actually, we'd like to ask the D.C. Court of Appeals whether, under D.C. law, the president's comments to the press were within the scope of his official duties. (If so, this case is toast.)
- Connecticut police wish to transfer a mentally disturbed inmate to a padded cell. The inmate gets mouthy and learns what happens when you bring words to a baton/K9/taser fight. Second Circuit: Qualified immunity. Dissent (Calabresi, J.): Not only shouldn't there be qualified immunity in this case, there shouldn't be qualified immunity in any case.
- New Jersey highway cops find three plastic bags with heart-shaped candies and arrest the motorist—but do not test the candies for two months. Whoops! They are not drugs. And even knowing that, it takes an additional four months to drop the charges. District court: Could be false arrest and malicious prosecution. No qualified immunity. Third Circuit: And the officers can't appeal that just yet because the motorist subsequently amended his complaint (at the district court's invitation), and that's not interlocutorily appealable.
- Fort Worth, Tex. officer shoots allegedly unarmed septuagenarian dead after going to wrong home to investigate burglar alarm. Plaintiffs: And the city is liable because of its policies: pairing rookie cops together on the midnight shift, not training officers that odd-numbered and even-numbered houses are on opposite sides of the street, and more. District court: Those things are all too attenuated from the actual shooting. The city is off the hook, but the excessive force claim against the officer can go to a jury. Fifth Circuit (unpublished): Sounds right to us.
- Last year, Texas officials flagged over 11k registered voters as potential noncitizens. Must the state turn over info identifying these folks in response to a public records request from the ACLU and other groups? District court: Yup, turn over the records. Fifth Circuit: Reversed. The plaintiffs may be entitled to the info, but they haven't shown how they—as opposed to the public at large—would be injured if it's withheld. No standing. Judge Ho, concurring: But that should be pretty easy to get around in a subsequent suit and, unlike the rest of the panel, I don't think it's gratuitous to say so.
- Allegation: Texas Justice of the Peace—a former Pentecostal preacher—opens court with a prayer delivered by a local faith leader. During the prayer, the judge scans the audience to see who is participating. Half-hearted participants can expect a surly reception when their case comes up for argument. Fifth Circuit: The evidence of bias is too speculative to support an Establishment Clause violation. Dissent: There's at least enough to go to a jury.
- In which Kim Davis—of Kentucky-clerk-cum-marriage-license-denier fame—loses her second bid for qualified immunity in the Sixth Circuit (unpublished). Back the case goes to the district court for a trial on damages, after which Ms. Davis gets to appeal to the Sixth Circuit for a third time.
- If law enforcement from eight different federal, state, and local agencies ever raid your home (with a warrant), search your place of business (without a warrant), and ignite a flashbang grenade near your sleeping 1-year-old, the Seventh Circuit has some (published and unpublished) advice on how and whether your suit for damages might proceed if, among other odds and ends, the roles and identities of the officers involved is a tad unclear—and irrespective of whether you are now serving a lengthy sentence for drug dealing. (Ethics query: Should the magistrate judge who signed the allegedly defective warrant recuse from these proceedings? Or is it okay because he isn't making dispositive rulings?)
- In 1989, the director of the Oregon Dept. of Corrections, who'd been brought in to root out corruption, is murdered at work—stabbed through the heart. A parolee confesses to the murder several times on different days, giving details not publicly known and corroborated by physical evidence. Nevertheless, investigators shift their attention to another man who steadfastly maintains his innocence. No physical evidence ties him to the crime, but he's barred from introducing evidence of the parolee's admissions and is convicted on the basis of witness testimony. He's sentenced to life and spends nearly thirty years in prison before the district court grants habeas and orders him released. Ninth Circuit: Nearly all the witnesses have recanted, claiming they lied because of police misconduct, and it was super unconstitutional to exclude the parolee's confessions. No reasonable juror would've voted to convict with the recantations and other confessions. (Yes, there is a podcast and movie about the crime.)
- Grants Pass, Ore. has more homeless residents than shelter beds, forcing some homeless to sleep in public spaces. Easy fix, says the town, we'll just make that illegal. Ninth Circuit: You can't ticket the involuntarily homeless just for being homeless. Dissent: Even if that's right, it has to be assessed person by person, not on a class basis.
- Police seize cash hidden in Las Vegas armed robbery suspect's attic (in 2014) and then in his mattress (in 2017). But wait! Charges in first matter are thrown out due to prosecutorial misconduct, and he's never charged with anything to do with the second. (He is, however, convicted of a different armed robbery.) But the gov't just sits on the cash, a cool $65k, taking none of the steps necessary to civilly, criminally, or administratively forfeit it. Ninth Circuit: Neither the robber nor the gov't can have it.
- Does federal law preempt California's attempt to regulate prisons run for the federal gov't by private contractors? Ninth Circuit (en banc): Have you read McCulloch v. Maryland? This is not too different from that.
- Congress authorizes a California dam in 1954 and seems to say it shouldn't let water go downstream to help the local steelhead. Two decades later Congress passes the Endangered Species Act, which, once the steelhead is listed as endangered, seems to mean that perhaps the dam should do just that. Ninth Circuit: Some expansive language in the original act means it doesn't contradict the ESA, so back to the district court to work out maybe releasing some more water. Dissent: That's not what the language says. But if it does it's nondelegation doctrine time.
- Without a warrant, Long Lake Twp., Mich. officials repeatedly fly a drone over family's home, curtilage, and five-acre wooded property, recording in HD. (They discover some old cars that can't be seen from a public vantage point.) Michigan Court of Appeals: Which is not a problem because the Fourth Amendment only protects against police searches, and this was code enforcement.
- And in cert grant news, the Michigan Supreme Court will consider whether the state's civil forfeiture statute authorizes the forfeiture of a vehicle based on Detroit police's allegations that a nursing student transported—not drugs—but a person who bought and immediately consumed a small amount of drugs in her car. (Not for nothing, but the allegations are applesauce. This is an IJ case.)
In the nearly 10 years since Los Angeles entrepreneur Ryan Crownholm started MySitePlan.com, he's created over 40,000 informal maps, called site plans, to help people with a huge variety of projects—hotels looking to guide guests from the lobby to their rooms, homeowners and contractors showing local building departments where they'll build a fence or shed, and much more. Basically anytime someone needs a handy map, MySitePlan.com can make one using publicly available information. But California licensing officials are trying to shut Ryan down because they say he is illegally practicing land surveying. Which is madness. Ryan doesn't claim to be making the authoritative legal surveys necessary for bigger projects, and no one has ever been confused. Taken literally, the state's position would mean anytime someone hand-draws a map on a napkin, they'd risk criminal liability. So this week IJ and Ryan filed suit in federal court. Click here to learn more.