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.
Last summer Alexandria, La. police pulled over Mario Rosales for failing to use his turn signal and detained him for 20 minutes, probing for evidence of other, more serious lawbreaking, cutting him loose when they didn't find any. But wait! The officers' dashcam shows that Mario did signal. Those sneaky dogs! Click here to learn more about IJ's latest case, a challenge to pretextual, picayune harassment that passes for police work.
Over at Intelligence Squared, IJ Attorney Anya Bidwell debates the Heritage Foundation's John Malcom on the merits of qualified immunity, explaining why it is really and truly okay if officers who make good-faith mistakes in life-and-death situations are not shielded from suit. With an appearance by The New York Times's Adam Liptak.
- Muslim inmates sue federal prison wardens in Connecticut under the Religious Freedom Restoration Act for restricting congregational prayer while allowing other group activities. Second Circuit: It is clearly established that officials can't restrict religious exercise without a compelling reason, and because there's no reason of any kind in the record at this stage in the litigation, no QI for you for now.
- In a startling break with tradition, this week's vocab quiz comes from Judge Phipps of the Third Circuit: parsimony, autohyponym, polysemy, and appeal. Yes, appeal! Either meaning of which is bad news for this defendant, who is on the hook (for $773,899.94) over unpaid taxes from 1986 to 1991 in spite of a 10-year statute of limitations for the feds to collect delinquent taxes.
- Section 230 of the Communications Decency Act says courts can't hold interactive websites liable for information provided by a third-party content provider. But, the Fourth Circuit reminds us, a website that collects and summarizes criminal-history information is itself a "content provider."
- Fourth Circuit: Contra the district court, a 67-year-old psychiatrist who failed the physical fitness exam that all new federal prison employees must pass does indeed have standing to bring sex- and age-discrimination claims. The exam: "drag a seventy-five-pound dummy at least 694 feet for three minutes, climb a ladder to retrieve an object within seven seconds, complete an obstacle course in fifty-eight seconds, run a quarter mile and handcuff someone within two minutes and thirty-five seconds, and climb three flights of stairs in forty-five seconds while wearing a twenty-pound weight belt." (You don't need to be able to do all of it; just most of it.)
- It's textualist vs. textualist as the Safety Valve Showdown heads to the Fifth Circuit. Under the First Step Act, drug offenders with sufficiently mild criminal histories can escape mandatory minimums. The precise wording is that a defendant is eligible only if "the defendant does not have—(A) more than four criminal history points [with an exception]; (B) a prior 3-point offense … , and (C) a prior 2-point violent offense." But wait just a minute. Does that mean "does not have (A), does not have (B), and does not have (C)"? Or does it mean "does not have all of (A) and (B) and (C)"? Because a defendant with just (B) really wants to know. Which heavyweight thinker will decide her fate? Judge Oldham? Judge Willett? Nineteenth-century logician Augustus De Morgan? There's only one way to find out.
- Two Kentucky judicial candidates receive "vague and threatening letters" from the state judicial conduct commission after the commission receives complaints about the candidates' campaign advertising. The candidates bring a First Amendment suit. District Court: But there hasn't been an injury yet, so no standing. Sixth Circuit (over a dissent): There's enough of a threat of enforcement to chill speech, so we'll grant an injunction pending appeal.
- It is clearly established that a driver's nervousness and reluctance to describe his travel plans does not give rise to the reasonable suspicion necessary for police to prolong a traffic stop beyond the time it takes to issue a warning or write a traffic ticket, says the Sixth Circuit (unpublished). So this gentleman who was pulled over for tinted windows and declined to share that his shaking was due to muscular dystrophy can indeed sue some Hamilton County, Tenn. officers. A jury might think they prolonged the stop to allow for a drug dog sniff (and, after a false alert, search of his car). No qualified immunity.
- If a member of the St. Louis Police Department believes that he has probable cause to arrest a person, he can issue a "Wanted," which authorizes any police officer to arrest the target of the Wanted without first getting a warrant from a neutral magistrate. A Fourth Amendment violation? Eighth Circuit: Not always, but often. Concurrence: If wanted posters were good enough during cowboy days, they're good enough today.
- In 2020, South Dakota enacted SB 180, a law that required paid ballot petition circulators to disclose their name, home address, email address, phone number, government-issued ID, voter registration state, petition sponsor name and sex offender status before they may circulate any petitions. All of this information must be available for public access, any changes must be updated within seven days, and any mistakes void all the signatures gathered by that circulator. Eighth Circuit: The challenged statute "effectively thumbs its nose at" not one, but two Supreme Court decisions. The district court was correct to preliminarily enjoin it.
- It is clearly established that police cannot fire tear gas at people in retaliation for their speech, says the Eighth Circuit, so these four St. Louis SWAT officers are going to need to convince a jury they had a good reason to gas a protestor as she was leaving a police brutality protest. (Nor does Missouri "official immunity" shield the officers from her state-law claims.)
- Reno, Nevada, may be the Biggest Little City in the World, but its attempt to wring cable franchise fees out of the Biggest Streaming Services in the World on behalf of a class of Nevada municipalities just went bust. Per the Ninth Circuit, the state law Reno sued under does not create a private right of action.
- The Miss United States of America pageant only allows "natural born females." Is that a violation of a transgender, would-be contestant's rights under Oregon's public accommodations act? District court: Point of fact, the act violates Miss USA's freedom of association rights. Ninth Circuit (majority): Yes, but we're just gonna say it violates free speech rights. And these same rights would protect Lin-Manuel Miranda's casting choices for Hamilton. Self-concurrence: But also association rights! Dissent: I know no one else has raised this, but does the act even apply here?
- Fun fact: The U.S. Code isn't really the law. Not in a that-flag-has-gold-fringe-your-Honor sense, but in that the U.S. Code is just a summary of statutes actually passed by Congress, and when the language of the Code conflicts with the statute, the statute controls—a fun fact that makes a rare appearance in actual, non-sovereign-citizen litigation in this Ninth Circuit opinion.
- In which the Guarantee Clause escapes from the Island of Misfit Constitutional Provisions (where it shares space with the Third Amendment, the Public Debt Clause, and an elf who wants to be a dentist) for a brief moment in the sun—by which we mean one paragraph in this Ninth Circuit opinion holding that it's nonjusticiable.
- Wisteria Island, a 22-acre spot just off Key West, wasn't formed 100k years ago from ancient coral reefs and sand bars, like the other keys. Instead, it sprung up about a hundred years ago when the Navy dredged oceanic soil in the harbor and piled it up until it became an island, so named because the ship Wisteria foundered nearby in 1919. These days, it's undeveloped and has become a squatter's community, with plans for a luxury resort brewing. But who owns it? The feds, pursuant to a law reserving for the feds lands built up by the feds for federal use? Or developers, whose title tracks to a 1951 purchase from the state of Florida? Eleventh Circuit: It depends—did the U.S. have an intended use for Wisteria Island when it created it? If so, the feds own it—but we're not sure, so to trial the case must go.
- The Chewbacca Defense does not make sense, but, per the Eleventh Circuit (unpublished), a prosecutor who brought it up in closing did not commit a harmful error. So this tax cheat's conviction stands. (H/t: SDFLA Blog.)
- Northwest Georgia voters: Our rep in Congress, Marjorie Taylor Greene, is an insurrectionist. Please keep her off the ballot (pursuant to Section 3 of the 14th Amendment). State administrative law judge: Um, there's not enough evidence. Ga. Sec. of State: Ditto. State trial court: Likewise. Ga. Supreme Court: We don't wanna hear an appeal. Greene, in federal court (while state case is pending): Please stop the state case. Federal district court: No. Eleventh Circuit (after state case is all done): This is moot. Concurrence: Yes, it's moot now, but the federal district court should have issued the injunction. Only Congress can enforce Section 3.
- Do fans of Georgia's monuments to the Confederacy that are maintained at public expense have standing to challenge a local gov't's attempts to take them down? The Georgia Supreme Court says some do, and over at the State Con Law Case of the Week we say there's much in the opinion that's of great relevance far beyond the Peach State.
- And in en banc news, the Fifth Circuit will reconsider its decision to deny qualified immunity to Laredo, Tex. officials who jailed a citizen-journalist in retaliation for criticizing them, charging her with violating an obscure provision of the penal code that no one is ever charged with violating. (We discussed the case on the podcast.)
- And in further en banc news, the Fifth Circuit will not reconsider its decision to deny absolute immunity to a Livingston Parish, La. prosecutor who invented a false narrative out of whole cloth (and strong-armed a vulnerable witness into repeating it before the jury) to secure a (now-overturned) murder conviction and death sentence.
- And in cert denial news, the Supreme Court has befuddlingly decided not to take up IJ case CSI v. Large, in which the Eighth Circuit bafflingly ignored black letter law that reserves qualified immunity for officials who are doing their job—unlike this Mahnomen County, Minn. highway engineer who acted outside the scope of his authority, playing at traffic cop and pulling people over to carry out a personal vendetta. Bewildering.
After she was laid off from her full-time job, Sally Ladd turned her side hustle—renting out her vacation home in the Pocono Mountains—into a full-time gig, managing six other vacation rentals for nearby property owners. But that all came to an abrupt halt in 2017, when Pennsylvania officials demanded that she obtain a real estate license, which requires 315 hours of coursework and a 3-year apprenticeship, among other things. This week, however, we're happy to say that—after a 2020 trip to the state's high court—Sally has prevailed at trial! Says the court: The requirements "are unreasonable, unduly oppressive, and patently beyond the necessities of the case." Nor do they "bear a real and substantial relation to protecting the public from harm." Hear, hear for state courts, judicial engagement, and the right to earn an honest living. Click here to learn more.