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.
Tu stultus es. So writes The Onion in an amicus brief urging the Supreme Court to take up Novak v. City of Parma, an IJ case that asks the question: Can the cops really ransack your home and put you in jail for making fun of them?
- Did Congress give the executive branch the authority to allow foreigners with student visas to stay and work for a while after they complete their in-class studies? D.C. Circuit: Yes, and this has been happening for over 70 years. Dissent: I'm going to use the word "verbicide" and quote Justice Holmes' father.
- Regulations adopted under the Americans with Disabilities Act require hotels to make information about their accessibility available on any reservation portal, so that those with disabilities can book a room without having to call the hotel. Serial ADA plaintiff, who has filed hundreds of lawsuits, searches the internet for noncompliant hotels and sues them. Hotel: But the plaintiff, a Florida resident, has no intention of ever visiting our hotel, so the missing information didn't harm her. First Circuit (deepening a circuit split): She had a statutory right to the information and you didn't provide it. That's an injury.
- Allegation: In retaliation for assisting other inmates with filing grievances at New York prison, guards search inmate's cell, lie about the dangerous nature of contraband found in his cell, and get him sent to disciplinary confinement for several months. Unconstitutional retaliation over his protected speech? District court: Inmates get their cells searched all the time; no one of ordinary firmness would be discouraged from filing grievances because it might result in a cell search. Second Circuit (unpublished): Well, there's the lying too. Case undismissed.
- Allegation: In retaliation for serving as an informant in an investigation into security issues at Delaware prison, officials punish inmate with isolation, take away privileges, and send him to a security housing unit for a year. Unconstitutional retaliation over his protected speech? Third Circuit (unpublished): Maybe he got sent to solitary for some other reason. Case dismissed.
- North Carolina inmate with debilitating hip, knee, and ankle pain seeks a handicap pass so that he can access a first-floor prison library instead of having to walk up two flights of stairs to get to the general population library. The prison denies the pass for seven months, aggravating the injuries. The inmate sues under the Americans with Disabilities Act. Fourth Circuit: But compensatory damages are only available if the defendants acted with deliberate indifference to the inmate's rights, and the inmate has failed to establish that. Dissent: There's more than enough here to go to a jury.
- Pretextual traffic stops "lead to the unnecessary and tragic ending of human life. Here, a child threw a candy cane out the window. Twenty-five minutes later, the driver, her father, was dead." And, says the Fifth Circuit, since video of the shooting doesn't clearly contradict the driver's estate's version of events, granting qualified immunity to an Arlington, Tex. Officer was inappropriate.
- In 2012, DHS issued a memo announcing DACA, a program pausing deportation of people who had entered the U.S. illegally as children and providing them with certain benefits. Fracas (and much litigation) ensues: The program is expanded, struck down, rescinded, the rescission is struck down, and DHS promulgates a rule in 2022. Fifth Circuit: We'll consider the 2012 memo, which we conclude violates administrative law and is enjoined except as to current DACA recipients. But we won't address the new rule until the district court does so first.
- We found a Third Amendment case! No, silly, not that Third Amendment. It's doing just fine. We mean the third amendment to the stock agreements between the Treasury Department and Fannie Mae and Freddie Mac made after the 2008 financial crisis. Sixth Circuit: The officer who authorized the amendment was constitutionally in office even though he had never been confirmed by the Senate and had been an "acting" director for three years. Dissent: Anything over six months is too much.
- South Bend, Ind. officer shoots suspect dead, tells everyone the man was wielding a knife. Man's estate: Between the officer's failure to activate his body cam and his subsequent felony conviction (for ghost employment), a jury might doubt his version of events. Seventh Circuit: And yet it is the only version of events we have to work with. Case dismissed.
- We found a Ninth Amendment case! But unfortunately for this gentleman, who says he suffered a head injury being thrown into a Rapid City, S.D. police car, the Eighth Circuit (unpublished) says that the "Ninth Amendment does not create rights cognizable under Section 1983."
- Thanks to the doctrine of consular nonreviewability, judges don't get to look at whether a U.S. consulate has a good enough reason to deny a foreigner's visa all that often. Ninth Circuit (over a dissent): But here, where the consulate refused to tell a man and his U.S. citizen wife the reason for the denial for nearly three years (and then only after being prompted by litigation)—the government's belief that he's a member of MS-13—her due process rights were violated. Remanded for a look at the merits.
- Remember a few months ago when we reported on a Ninth Circuit Fourth Amendment case about digital seizures where, according to UC Berkeley law professor Orin Kerr, "Holy crap" (his words) "this case just made some crazy-wild law on digital seizures and terms of service without the judges even realizing it" (our words paraphrasing him)? Well, the panel has amended its opinion to take out the crazy-wild stuff, although otherwise the ruling and result are the same. You'll be happy to know that Professor Kerr is pleased.
- Pretrial detainee in Clear Creek, Colo. jail suffers face fractures, broken jaw, dismembered teeth, and stab wounds after unprovoked attack by another detainee. It takes the two guards, who are responsible for watching 120 detainees in different pods, two minutes to enter the pod. Tenth Circuit (unpublished): The sheriff isn't liable because the detainee failed to show the sheriff was aware of the risk of such attacks in overcrowded, understaffed conditions.
- A Florida law prohibits cruise lines (among other businesses) from requiring passengers to prove they've been vaccinated against COVID-19. District court: That's a free-speech violation. Law enjoined! Eleventh Circuit: Asking for proof of vaccination is speech, but kicking somebody off the boat when they decline to provide it is conduct, and this law only forbids the second thing. Law un-enjoined! (Dissent: A law prohibiting cruise lines from trying to prevent the spread of COVID-19 on their ships is the exact opposite of a public-health law.)
- Man is charged with felony murder for his suspected role in Albany, Ga. gang shootout, but after the prosecution is dropped he sues the detective who sought a warrant for his arrest. Eleventh Circuit: Indeed, the detective's affidavit was "skeletal" and "devoid of relevant and reliable facts"; no reasonable officer would have thought it was sufficient to establish probable cause. No qualified immunity.
- Florida pastor is invited to give an invocation at the start of a Jacksonville, Fla. city council meeting, but quickly turns the prayer political, levying criticisms against the city's executive and legislative branches. The president of the city council admonishes the pastor to no avail, and ultimately cuts off his microphone. The pastor sues, alleging violation of his rights to freedom of speech and free exercise of religion. Eleventh Circuit: The opening invocation was government speech, so the city council had authority to control its content.
- Man convicted of rape in 1986 moves to Montgomery, Ala. with his common-law wife in order to care for his aging mother. Uh oh! Alabama's sex-offender registry law makes it impossible for him to find housing, forcing him to sleep under a highway overpass (among other inconveniences and indignities). But does the law, enacted long after the man's conviction, violate the Ex Post Facto Clause? Eleventh Circuit (after a seven-year delay): Nope. The scheme isn't designed to punish, so its retrospective application is constitutional.
- Georgia man who—along with two accomplices—kidnapped, gang-raped, and murdered his ex-girlfriend is convicted and sentenced to death. But was his lawyer's performance so deficient that the sentence must be overturned? Eleventh Circuit (en banc): Even if the lawyer did a bad job, the state courts reasonably found there was no prejudice, and we defer to that finding. Concurrence: We shouldn't defer, but it doesn't matter, because there was no prejudice. Dissent: There's a reasonable probability that at least one juror would have been swayed against the death penalty, and that's enough for resentencing.
Friends, Humboldt County, Calif. officials are dinging residents with $10k per day fines over cannabis-related offenses that … are not real. Using outdated satellite images, officials have assessed millions in fines for nonexistent cannabis without even a cursory investigation. "If the county inspector had asked to swing by, I would have been happy to show him inside my greenhouses," says IJ client Blu Graham, who owns a restaurant. "I've got nothing to hide. It was just a bunch of peppers." Even worse, the county makes residents wait years to simply schedule a hearing to challenge the fines—the fines accruing all the while. Officials refused to give Blu a hearing for nearly five years (and then mysteriously scheduled one and dropped the fines right before we filed suit.) That's all super unconstitutional, so this week IJ filed a federal class action on behalf of thousands of innocent property owners subjected to the county's nuisance abatement regime. Click here to learn more.