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.
Short Circuit Live is heading to New York City this Wednesday, Oct. 26 at 7pm. Come join us and special guests Alex Reinert of Cardozo Law, Maaren Shah of Quinn Emanuel, and Bruce Green of Fordham Law. RSVP today!
- Federal task force officers shoot, kill terrorism suspect (who, in surveilled calls, had threatened to behead a random victim imminently and had had knives delivered to his home) in Boston parking lot after he advanced toward them, refusing to drop what was in his hand. First Circuit (implicitly): It is possible to sue federal officers for using excessive force in violation of the Fourth Amendment. First Circuit (explicitly): But not these officers, who reasonably believed he had a knife. Qualified immunity. Dissent: The estate hasn't been able to depose them, which they ought to be able to do.
- Workers at an Amazon warehouse on Staten Island sue for alleged unsafe working conditions and other violations related to the company's treatment of them in Spring 2020 related to the COVID-19 pandemic. Second Circuit: Only one of the plaintiffs' various state law claims survive, plus here's an explanation of how the doctrine of primary jurisdiction works. Partial dissent: I'd also let the public nuisance claim go forward.
- Is it cool for the Consumer Financial Protection Bureau to have a unique funding scheme under which it can simply requisition money directly from the Federal Reserve? Fifth Circuit: Neither cool nor constitutional. Congress has the power of the purse, and ceding that power to a federal agency violates the Appropriations Clause and basic separation-of-powers principles.
- Here's one for the civil procedure nerds: Louisiana property owners allege that Halliburton (among others) polluted their groundwater and that the Louisiana Department of Environmental Quality (LDEQ) knew about it and didn't tell them. The property owners sue in state court. Halliburton removes to federal court, arguing that there is complete diversity because the LDEQ was improperly joined. The district court agrees and, on Halliburton's motion and over plaintiffs' objection, certifies its dismissal of LDEQ as a final judgment under Rule 54(b). Meanwhile, one of the plaintiffs files a state declaratory judgment action seeking a declaration that LDEQ owed a duty to plaintiffs—making joinder proper—and Halliburton files a motion in federal court to enjoin the parallel state proceeding, which the federal court grants. Plaintiffs appeal. Fifth Circuit: The Rule 54(b) certification was fine, the injunction was not, and the state law is murky enough that we can't say LDEQ was improperly joined. Remanded to state court.
- And speaking of remands to Louisiana state court: Though during World War II these oil producers worked with the federal gov't "to help (literally) fuel the war effort," says the Fifth Circuit (unpublished), they were not acting under the feds' direction. So there's no federal jurisdiction to hear a municipality's state law claims over alleged environmental damage they've caused since 1980.
- Company that operates Kroger grocery stores throughout Tennessee has a collective bargaining agreement that covers all its full- and part-time employees. When Kroger corporate opens up a warehouse in Knoxville, the union tries to force the grocery store operator to extend union benefits to warehouse employees. The grocery operator demurs, and the union sues to enforce arbitration. Sixth Circuit: And to arbitration it must go. Dissent: Which is passing strange, as the grocery operator alleges that it neither controls the warehouse nor employs the workers there.
- Normally, when the Sixth Circuit hands down an opinion featuring the name of your humble, inoffensive editor, it would be an all-hands-on-deck joke situation. But where, as here, the eponymous plaintiff suffered several significant spinal injuries, we will refrain from jocosity in the spirit of John Ross Solidarity.
- Without warning or command, and only 12 seconds after he arrived on scene, Des Moines, Iowa officer pepper sprays protester protesting police brutality and livestreaming events on her phone. District court: It's not clearly established that using chemical irritants to disperse protesters is a seizure. So there's no Fourth Amendment problem. Eighth Circuit: But no QI for the officer on the First Amendment claim. A jury might think he used force in retaliation for her speech.
- The Supreme Court has long held that excessively large damages awards can violate the Due Process Clause. But what if that too-large award is made up of many, many smaller awards? Ninth Circuit: From little things, big (and unconstitutional) things grow.
- When police surround his Laguna Woods, Calif. home, sexagenarian swears at them, exposes his buttocks, waves his cane, and tells the officers to shoot him. ("What are you going to do, shoot a blind man?") They do, killing him. Officers: Because he picked up a gun. His wife: He did not pick up a gun. Ninth Circuit: To a jury this must go. No QI on the excessive force claims. Separately, however, his wife cannot assert claims on her own behalf because the officers' conduct (as she alleges it) does not shock the conscience. (And even if it did, whether spouses, as opposed to parents and children, can bring familial association claims is an open question.)
- Oil company owns two small Commerce City, Colo. refineries that sit right next to each other and that were purchased from two separate prior operators. EPA: The two are now so integrated they count as a single refinery—one that is too big to be eligible for the small refinery exemption from the Clean Air Act's renewable fuel mandates. If it were otherwise, companies could just arbitrarily subdivide their operations to qualify for the exemption. Tenth Circuit: Try again, EPA. Among other things, you gotta give companies some idea of what constitutes integration.
- Cleveland reporter and newspaper seek city police use-of-force reports under state public records law. Ohio Court of Appeals: No dice. All reports are exempted as "confidential law-enforcement investigatory records" because every officer using force is a criminal suspect. Ohio Supreme Court: Whoa! I bet those cops would be surprised to learn they're all suspects. The city has to disclose the reports with much more targeted redactions.
For years, Granite City, Illinois, would force private landlords to evict entire households if any member of the household—or even a guest—committed a felony anywhere within city limits. Hundreds of renters were forced from their homes. Many were innocent of any wrongdoing. A nightmarish and unconstitutional exercise in collective punishment? We at IJ think so! But a district court last month thought otherwise, approving Granite City's guilt-by-association scheme as a valid tool of "crime deterrence and prevention." Which is why we have appeals courts. Learn more in this recent op-ed and this St. Louis Public Radio piece.