The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Short Circuit: A Roundup of Recent Federal Court Decisions

Pit bull bans, community sensitivity, and criminal defamation.


Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Last summer, after Chasidy Decker talked to the Idaho Statesman about a Meridian, Idaho code enforcement officer's threat to fine her $1k per day if she didn't move her perfectly lovely, perfectly safe (and perfectly connected to septic) tiny home on wheels, the officer cited her and her landlord for piddling parking and vehicle violations, ignoring the very same violations (and also other homes on wheels) on neighboring properties. What a bully! So we're pleased to report that this week a state district court ruled that Chasidy and her landlord's challenge to the city's tiny home ban—and the officer's retaliation over her speech—can move forward. Learn more here.

  • Defamation can be prosecuted as a criminal misdemeanor in New Hampshire. Which is inconvenient for an Exeter man, who is arrested over his online commentary in 2012 (accusing a life coach of road rage and heroin dealing) and again in 2018 (posting (inter alia) that a police officer was "the dirtiest most corrupt cop I have ever had the displeasure of knowing" and that the officer's daughter was a "prostitute"). First Circuit: The defamation statute doesn't violate the First Amendment and isn't unconstitutionally vague. Concurrence: On the First Amendment question, we're bound by Supreme Court precedent, but let's not forget that "these laws have their genesis in undemocratic systems that criminalized any speech criticizing public officials." (An interesting long-form piece on "Bob Exeter" is here.)
  • Faced with a measles outbreak, officials in Rockland County, N.Y. issue an emergency declaration barring unvaccinated minors—except those with a medical exemption or documented serological immunity—from places of public assembly, including schools. Members of the county's Hasidic Jewish community sue, alleging that the elimination of the religious exemption violates the Free Exercise Clause. Second Circuit: And maybe it does; a jury could decide that the order was motivated by anti-religious animus.
  • Does it violate equal protection for the Pennsylvania Department of Corrections to treat sex offenders differently from other parolees due to "community sensitivity"? District court: That's so unfair it violates the rational-basis test. Third Circuit: "[N]ot all crimes are alike." Reversed.
  • Third Circuit (2018): Challenges to FERC-approved pipelines have to be brought as appeals from the FERC regulatory process, so this group of nuns that wants to invoke the Religious Freedom Restoration Act are totally hosed. Third Circuit (this week): These same nuns remain hosed.
  • Twenty-six-year-old driver has schizophrenic episode after his car is run off the road near Santee, S.C. He removes his clothes and clambers on a tractor-trailer, which drives off. Two miles later, the tractor-trailer driver notices the man, calls 911. Upon arrival of police and EMS, man becomes non-verbal. Emergency-medical personnel abuse him and include inaccurate information in the care report. He's left shoeless and shirtless at a closed gas station at around 2 a.m. and found dead (by the same EMS crew) four hours later, struck by a car. District court (Childs, J.): No qualified immunity for the paramedics. Fourth Circuit: Agreed. (The shambolic episode is covered in some detail in this 2019 piece by EMS1.)
  • To stop the spread of COVID-19, Columbus, Miss. ordinance shuts down tanning salons—but not liquor stores—for seven weeks in the spring of 2020. Fifth Circuit: It might be the case that people spend more time in tanning beds than liquor stores, so there might be more virus spread in the former—and that's all that the gov't has to say to win, thanks to the rational basis test. Concurrence: "If we're going to recognize various unenumerated rights as fundamental, why not the right to earn a living?" SCOTUS, please fix, perhaps by taking up this IJ case.
  • Allegation: Duncanville, Tex. officer shoots man suffering from severe mental health episode in the stomach as he reached for a phone despite the man's mother assuring officers there were no guns in the home (and the chief of police, in turn, assuring her that the officers wouldn't hurt her son). Three days before the statute of limitations expires, the man sues the officer as John Doe. District court: Which didn't give you enough time to do discovery and identify him. Claims against the now-known officer dismissed. Fifth Circuit: No suing the chief either.
  • After Cincinnati police misconduct investigator allegedly selectively starts and stops videorecording during officer interview, officer and his union rep seek to make their own recording. Does the First Amendment give officers the right to record in such circumstances? Sixth Circuit: No, and anyway the city now requires investigators to record the entirety of such interviews.
  • Did Michigan officials waive their Fifth Amendment right against self-incrimination when they testified in pretrial depositions in a civil suit arising out of the Flint Water Crisis? Or is this case moot? Sixth Circuit: No and no (Griffin, J.); No and yes (Thapar, J.); Yes and no (Moore, J.).
  • Taking a page from the city of Reno, Nev., the city of Ashdown, Ark. sues Netflix and Hulu in an attempt to shake franchise fees out of them. And, taking a page from the Ninth Circuit, the Eighth Circuit holds that the state's Video Service Act does not create a private right of action. Case dismissed.
  • In 2005, Council Bluffs, Iowa officials banned pit bulls (the dogs, not Mr. 305), which to this day has some residents barking mad. But they had a ruff time of it this week in the Eighth Circuit, which found the bark of plaintiffs' equal protection and due process arguments was worse than their bite. Surely though, other people who care about this pet issue won't bow(wow) out of challenging these types of laws in other circuits.
  • California tax authorities demand that online merchants who participate in the "Fulfilled by Amazon" program collect and hand over sales taxes for sales made through Amazon. Merchants sue in federal court, raising various constitutional and statutory claims. Ninth Circuit: Yeah, you can't do that because of the Tax Injunction Act. Pay up and then sue in state court for a refund.
  • TSA employee is approached by an FBI agent who tries to recruit him as a confidential informant. After declining the offer, the TSA agent is surprised to find his security clearance revoked. Because the clearance is a prerequisite for the job, he's forced to quit. He sues. Ninth Circuit: But all of his claims fail. Among other things, he has no right to a security clearance and, hence, no protected liberty interest in working a job that requires security clearance.
  • Allegation: Fort Collins, Colo. woman is thrown to the ground by a police officer twice her size when she resisted his grip while he investigated an altercation at a bar. Tenth Circuit: The force was excessive. But it wasn't clearly established that an officer couldn't use a takedown maneuver on a person resisting arrest, so he gets qualified immunity.
  • Allegation: Woman checks into the University of Kansas Hospital Emergency Room complaining of shoulder and jaw pain. Radiology technician straps her down for an MRI. She falls asleep. She awakes to notice the tech touching her breasts and putting his mouth over them. Hospital: As an arm of the state, we get sovereign immunity. District court: The hospital offered no evidence that it actually is an arm of the state, but I'm gonna do its work for it and I conclude that it is. Case dismissed. Tenth Circuit: The burden is on the hospital, and, since they didn't even try to meet it, case undismissed.

Back in the first weeks of the pandemic, Waylon Bailey cracked a joke on Facebook about COVID-19, a Brad Pitt zombie movie, and sheriff's deputies in Rapides Parish, La. being authorized to shoot "the infected" on sight. No one was alarmed. No one called the sheriff to complain. And yet, deputies came to Waylon's house with guns drawn, handcuffed him, and took him to jail. An obvious First Amendment violation! But this summer a federal district court dismissed Waylon's suit, relying on a pair of long-discredited Supreme Court cases that permitted the gov't to imprison critics of World War I to grant the officers qualified immunity. Now IJ is appealing. Read all about it over at The Washington Post.