The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Chalking tires, curbing meters, and secretly recording videos.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
"The Onion may be staffed by socialist wackos, but in their brief defending parody to this Court, they hit it out of the park." So writes The Babylon Bee, a "'dangerous,' 'far-right misinformation site,'" whose staff is also urging the Supreme Court to take up Novak v. Parma and tell police everywhere that you can't arrest people for making fun of the police. Click here to read the Bee's amicus brief. Or click here to read their other brief in support of the police.
New on the Short Circuit podcast: We kick it live in NYC.
- Plaintiff: Your reporter defamed me by claiming that I was among the Trump supporters present at the January 6 riot at the U.S. Capitol. Defendant: But you were among the Trump supporters who were present at the January 6 riot at the U.S. Capitol. Plaintiff: Well, sure, I was with them, but I wasn't, like, among them among them. First Circuit: Case dismissed.
- Voter-registration orgs say Texas's new residency rules for voters have forced them to spend more money registering voters in Texas. Can they sue? Fifth Circuit: It seems like over a dozen new voter-registration laws in Texas have forced you guys to spend more money there, so you don't have standing to sue about just the one.
- Allegation: After inmate altercates with guard, he's taken in handcuffs to part of an Ohio prison without cameras, and a group of guards kick, stomp, punch, and pepper spray him. Then he's put into solitary confinement and told, among other misrepresentations, there are no forms available with which to file a formal grievance. Sixth Circuit (over a dissent): So he might be excused for failing to exhaust his administrative remedies. Case undismissed.
- Springfield, Ill. city water meter reader is fired for "curbing meters," the practice of recording a meter read without actually reading the meter, at seven homes. Former water meter reader: But the city did not fire this other water meter reader, who skipped out of work for hours at a time and who lied about his criminal conviction on his job application. Seventh Circuit (over a dissent): The two men's offenses are of comparable seriousness, and so the former water meter reader's reverse discrimination claims should not have been dismissed.
- Circuit split alert! Assuming that San Diego parking officers' routine "chalking" of car tires is a Fourth Amendment search, is it nonetheless constitutional under the "administrative search exception"? If a dragnet is okay to nab drunk drivers, says the Ninth Circuit, it's okay to preserve parking spots. Plus, c'mon, who really cares about the chalk? Dissent: "[T]he City's interests in perpetuating its parking enforcement regime don't chalk up." (We discussed the Sixth Circuit's contrary ruling last year on the podcast.)
- Allegation: Some users of Reddit post explicit images of children. When the victims and their parents ask Reddit to take them down, it does so haphazardly and doesn't take other actions that could help to stop the practice. Does Section 230 shield Reddit from liability? District court: Immune, dismissed. Ninth Circuit: There is an exception to Section 230 immunity under recent legislation, but only if the service provider itself violated federal trafficking law. Reddit didn't, so affirmed.
- In 2015, the Center for Medical Progress began releasing videos secretly recorded with abortion providers at Planned Parenthood clinics and at various conferences. Uh oh! CMP's founders signed a bunch of confidentiality agreements in order to gain access to these places. Planned Parenthood sues and is eventually awarded nearly $2.5 mil in damages. Ninth Circuit: And they get to keep almost all of it. CMP et al. had no First Amendment right to break the laws they broke.
- Over the last 25 years, Florida has repeatedly amended its sex-offender-registry law to require more information, more frequent updates, and more in-person meetings. The most recent amendments, from 2018, require registrants to report any absence from their permanent residence, for any reason, that lasts more than three days. And any failure to comply with the registry is a third-degree felony. Seven registrants, all of whom committed their crimes more than 25 years ago, sue. Eleventh Circuit: And most of their claims can go forward; because the registration requirements inflict an ongoing injury, they are not barred by the statute of limitations.
- The "bad faith" exception to Younger abstention is something of a rara avis. But in this lawsuit alleging that the Attorney General of Alabama seized a guy's $240k bank account as part of a feud with the guy's brother—Jefferson County, Ala. Sheriff Mark Pettway—the district court espied this South Philippine Dwarf Kingfisher of fed-courts doctrine. Younger abstention denied. Qualified immunity granted. Eleventh Circuit: The district court was right not to abstain (though for far more mundane reasons than the lower court relied on). But it does Brother Pettway no good. The AG gets qualified immunity.
- Harris County, Ga. deputy pulls woman over, forces her to perform oral sex. When she files a complaint, the sheriff reaches out to everyone the deputy pulled over for six months, which turns up other victims. (The deputy is now serving an eight-year prison term.) Can the woman sue the sheriff? The Eleventh Circuit says no. The deputy may have kneeled on a handcuffed suspect's neck (resulting in the suspect's death), and he may have followed his ex-wife around in his patrol car, but neither of those things put the sheriff on notice he'd sexually assault women.
- And in en banc news, the Fifth Circuit will not reconsider its decision that the SEC's system of in-house judges is unconstitutional thrice over.
- And in more en banc news, nor will Ninth Circuit reconsider its decision to preliminarily enjoin future private enforcement suits against California businesses for failure to comply with Prop 65, which requires warning stickers—that may or may not be misleading—about the dangers of acrylamide in foods and beverages. Five judges dissent.
For years, septuagenarian Norma Thornton has fed hot, nutritious, homecooked meals to the needy in a Bullhead City, Ariz. park, always leaving the area cleaner than when she arrived. But this spring, she was arrested and prosecuted for violating a new law that bans sharing food "for charitable purposes" without a permit, which are hard to come by and only available once per month. (After Norma rejected a plea deal, prosecutors dismissed the charges, but the city has made clear she'll go to jail if she continues to serve in the park.) But criminalizing charity is unconstitutional, so this week Norma is fighting back with a federal lawsuit. Click here to learn more. Or click here for some plucky local journalism.
Last month, the Michigan Court of Appeals ruled that the Fourth Amendment doesn't apply in civil code enforcement proceedings, so it's no problem that Long Lake Township officials flew a drone over Todd and Heather Maxon's backyard taking high-res photos and videos without a warrant for over a year. That can't be right, and IJ asking the Michigan Supreme Court to say so. Click here to learn more.
