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 pretextual traffic stop turns deadly and standing to sue under the ADA.
- Beauty may only run skin deep, but the circuit split on the interplay between the First Step Act and "compassionate release" is getting close to the bone. Add the D.C. Circuit to those holding that the Act's changes to "stacking" may not be considered for whether a prisoner who was sentenced before the Act may now qualify for compassionate release. (The Ninth Circuit is on the other side. You can hear our discussion of that case and this issue on last week's edition of the podcast.)
- Last year, Maine legislators barred motor carriers and landowners owning at least 50k acres of forest land from employing non-residents to haul timber in-state—lest Canadian truck drivers depress the wages of in-state timber truckers. First Circuit: Enjoined! Employers must run a gauntlet to secure H-2A visas for the truckers from the feds, and any additional state regulatory burdens are probably pre-empted. (And there's no need to reach the equal protection arguments, which the district court found persuasive.)
- In flagrante delicto: In 2009, man is caught in the act of Philadelphia home invasion, but his trial does not commence for over four years. A violation of his fundamental right to a speedy trial? Applying the requisite four-factor test, the Third Circuit says yes; release him forthwith.
- Haitian opposition party activist flees to the U.S. after he receives death threats and his house is burned down by, he says, members of the government. But his lawyer fails to present easily obtainable and relevant evidence, and he's ordered removed. Third Circuit: Vacated. He received ineffective assistance of counsel. Concurrence (via Ambro, J.): The immigration judge messed up as well.
- Allegation: To interdict suspected marijuana possessor, phalanx of Harris County, Tex. officers jump curb, drive vehicles through park that is crowded with families. The suspect quits the park but eventually stops and raises his hands. Without warning or command, an officer tases him. He falls and hits his head on the asphalt, suffering a traumatic brain injury. After which, though he's writhing on the ground in pain and bleeding from the ears, nose and mouth, the officer tases him again. Fifth Circuit: Don't run from the police.
- In the latest "give me a refund for a lousy Spring 2020 educational experience" case, the Fifth Circuit says that some Tulane students might have claims for breach of contract, unjust enrichment, and conversion under Louisiana law resulting from the university shutting down in-person services due to the COVID-19 pandemic.
- Is it a Fifth Amendment "taking" for Oakland County, Mich. officials to take title to a woman's ~$300k home to satisfy a ~$22k tax debt—and refuse to refund her any of the difference? Sixth Circuit: Quite possibly. And what we know for sure is that the government can't circumvent the Fifth Amendment simply by "exclud[ing] from its definition of property any interest that the state wishe[s] to take." The takings claim may proceed.
- Sixth Circuit (last month, unpublished): A Colerain Township, Ohio woman doesn't have standing to challenge the local police department's prohibition of posting "inappropriate" comments on its Facebook page because her Facebook comments were deleted for totally different reasons. Sixth Circuit (this week, published): We now deem this opinion suitable for publication.
- Pulaski County, Ky. constable, an elected official, planted evidence, lied on warrant applications, threatened suspects, and kept heaps of meth in his house (for planting to get false arrests). He's convicted and sentenced to (a below-guidelines) 140 months. Sixth Circuit (via Sutton, C.J.): Conviction and sentence affirmed. Concurrence (via Sutton, C.J.): I'm not sure that planting drugs counts as distributing them under the statute. But the constable didn't raise quite that argument, so we'll leave it for another day.
- Spooky! On Halloween 2018, two St. Louis men distributed bologna sandwiches and bottled water to the homeless without a permit. Police cite them for violating the city's food code despite their protestations that they're fulfilling a religious duty. Eighth Circuit: The ordinance does not run afoul of the First Amendment.
- Allegation: Inmate at Atwater, Calif. federal prison is beaten up after a guard tells other inmates he's a snitch and offers a bounty to assault him. An Eighth Amendment violation? Can't say, says the Ninth Circuit; except for some exceptions not relevant here, you can't sue federal officials for violating the Constitution.
- Under California law, professional door-knockers and signature gatherers are regulated as employees with all the attendant benefits, while door-to-door salesmen are regulated as independent contractors. But wait! Isn't there a First Amendment problem with imposing additional burdens on employers just because their workers tout candidates and ballot initiatives instead of vacuum cleaners and knife sets? Ninth Circuit: Nope, the law distinguishes based on the work they do. Dissent: Which you determine based on what they say.
- Until recently, the state of Oregon automatically suspended the driver's licenses of folks with unpaid traffic debt, which has the rather perverse effect of making it even harder to pay off that debt. But if the state can't jail debtors who lack the ability to pay, can it nevertheless take their transportation to and from work? Ninth Circuit (over a dissent): Yes it can, though Oregon repealed this law while the case was ongoing. (IJ filed an amicus brief in this case.)
- Oregon prisoner has a grievance: Prison officials improperly confiscated mail from his lawyer. He wants to complain, but the prison has a policy of not entertaining more than four simultaneous grievances from any prisoner. To proceed, he has to dismiss one of his pending grievances and forgo any remedy on it. Ninth Circuit: Which means that administrative remedies were unavailable to him, and he can come to federal court.
- Florida couple marries. Husband freezes sperm, dies. Wife later conceives through in vitro fertilization, gives birth to child. Does the child qualify for child's insurance benefits under the Social Security Act? Well, it depends on whether Florida law lets the child inherit a share of the father's intestate personal property. Eleventh Circuit: What a chewy, super-interesting question for the Florida Supreme Court to sort out. Certification!
- And in en banc news, the Fourth Circuit will not reconsider its decision that a trans woman can sue Fairfax County, Va. prison officials under the ADA for failing to accommodate her gender dysphoria.
- And in more en banc news, the Fifth Circuit will reconsider its decision (and, one expects, its precedent) requiring female Dallas jail officers to be fired, demoted, or otherwise adversely treated before they can challenge a policy whereby they cannot have full weekends off work but male officers can.
- And in further en banc news, the Ninth Circuit will not reconsider its decision that the Board of Immigration Appeals must send noncitizens notices to appear that include both the date and time of their removal proceedings, or else any in absentia proceedings are invalid.
- And in additional en banc news, the Ninth Circuit will not reconsider its decision that a Muslim inmate did not have a right under RLUIPA to be housed exclusively with other Muslim inmates in order to avoid harassment by non-Muslim inmates during his daily prayers.