The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Veterans' benefits, Robert's Rules of Order, and Floribama.


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

New cert petition: Earlier this year, the Eighth Circuit held that the First Amendment contains no protections against sham, bogus retaliatory investigations and granted qualified immunity to a child welfare worker who did her best to ruin the lives of an innocent family because they criticized Scott County, Mo. officials for hiring the sheriff's deputy who sexually abused their son. Click here to learn more.

  • Since being elected mayor of Fall River, Mass. at the tender age of 23, the defendant in this First Circuit case has fallen far—but not so far as to be unworthy of a Judge Selya vocab quiz: chiaroscuro, tenebrous, tamisage, perscrutation, supererogatory, condonation, sockdolager.
  • His legal claims may be right or wrong, but, per the Second Circuit, this pro se litigant may not sue under the pseudonym Publius Publicola.
  • UConn women's soccer player flips the bird to a TV camera during team's post-game celebration after winning 2014 conference tournament championship. After first being suspended for several games, she eventually loses her academic scholarship. She sues for violations of the First Amendment, Due Process, and Title IX. Second Circuit: Qualified immunity on the constitutional claims, but the Title IX claims go forward. She's put forth sufficient evidence that misconduct by male athletes is not treated nearly so harshly.
  • During the pandemic, New York officials released guidelines that contemplated reallocating scarce ventilator machines away from chronic ventilator patients like the plaintiffs to other patients. Gov't: No standing, unripe, moot, outside the statute of limitations. Second Circuit (unpublished): Plaintiffs may be Not Dead Yet, but their suit is.
  • New Jersey allows political candidates to include a six-word slogan next to their name on the ballot, but if it references another person or group, the candidate must get that person or group's permission. A First Amendment violation? Third Circuit: No. This case is subject to a more flexible First Amendment test that applies to state regulations of the mechanics of the electoral process. So either get Bernie Sanders' permission to use the slogan "Bernie Sanders Betrayed the NJ Revolution" or think of something else.
  • DEA task force agents surveil drug dealer and informant, but yikes! An unknown third party enters the suspect's Wilmington, Del. house, exits with suspected contraband, and then eludes a traffic stop. Concerned the party will tip off the suspect, agents conduct "hit-and-holds" at the target's house and stash house. That is, they burst in without a warrant, secure the scene, and then secure a warrant. An unlawful tactic? Third Circuit: No need to consider that. The agents had enough evidence to get a warrant prior to the hit-and-holds.
  • Morgantown, W.V. cop pulls over a car for a broken taillight. The cop, concerned about the driver's nervousness, issues a citation and then uses his dog to sniff the car. The dog alerts on a passenger's backpack, which has two guns in it, for which the passenger is later convicted. Fourth Circuit: The cop needed reasonable suspicion to extend the stop for the dog sniff. And the driver's nervousness isn't enough, given that most everyone is nervous when interacting with the police. The dog sniff is suppressed and the conviction vacated.
  • In 1993, Grayson, Ky. octogenarian is found by police stabbed to death in her bed. Next to her body is a drunk man, covered in blood, and possessing her jewelry and a butter knife with an oddly twisted tip. Prosecutors argued that he used the twisty knife to unscrew 17 paint-covered screws on a storm window to break into her home. The jurors decided to test this theory by using the twisty knife to try and unscrew and remove a cabinet door in the deliberations room. Satisfied, they find the man guilty and sentence him to death. Sixth Circuit (over a dissent): Jurors definitely can't experiment like that. New trial forthwith or let him go.
  • Pretrial detainee at Coffee County, Tenn. jail says guards choked, tased him without a good reason. Guards says he tried to fight them. Oops! Despite the detainee's request, the video is not preserved. Jury: We're going to say one guard used excessive force. We award you $1. Detainee: Surely $1 is not reasonable. Sixth Circuit (unpublished): Yeah, no, it is.
  • Sixth Circuit (unpublished): The process for figuring out whether an area will be listed on the National Register of Historic Places is "reminiscent of a dystopian novel," but being listed on the Register doesn't seem to harm these particular property owners right now, so their case is dismissed.
  • Speaking of dystopian novels, in 2019, Detroit police commissioner breaks with Robert's Rules of Order and speaks out of turn at Board of Police Commissioners meeting, criticizing the proposed use of facial recognition technology to identify defendants. Told he'll be removed, he continues to speak and is dragged out (in violation of Robert's Rules, which require a commission vote first). Unlawful retaliation for his speech? Sixth Circuit (unpublished): No, the officers had probable cause to believe he resisted arrest and violated a law against disturbing meetings.
  • Alcoholics Anonymous members famously follow a 12-step program to treat their addiction. Not-so-famously, the Air Force "follows an 11-step religious-exemption process" for those who want out of its COVID-19 vaccination mandate. Only 135 of the 9,754 applications were granted—and these were granted only to those who were planning to leave the service within a year anyway. Does this violate the Religious Freedom Restoration Act? Sixth Circuit: It likely does. Serenity now, the class-wide injunction is affirmed.
  • Indiana law requires abortion providers to dispose of fetal remains by either burial or cremation unless the woman takes possession of the remains, in which case she may dispose of them as she wishes. Two women who had abortions object that the requirement for burial or cremation implies the personhood of a pre-viability fetus, while two abortion providers object to telling patients about their statutory option of taking possession of the remains. Are these First Amendment violations? Seventh Circuit: Units of government are allowed to express opinions, and physicians can be required to inform patients of relevant facts related to medical procedures. Case dismissed.
  • Anoka County, Minn. had an unwritten policy under which all foreign-born persons booked in the county jail would be detained until the county heard back from ICE on whether ICE wanted to take custody. Eighth Circuit: This is an exceptionally dumb policy, not least because it'd apply to foreign-born icons Bruce Willis and Arnold Schwarzenegger. At the same time, the policy is also an exceptionally good example of national-origin discrimination. Which triggers strict scrutiny. Which the policy flunks because it is exceptionally dumb.
  • Uber users sue the ridesharing service over a fee. In a $32 mil settlement, the class will receive an average of a buck and seven cents, and a majority 35 cents or less. Meanwhile the plaintiffs' lawyers receive a separate award of over $5 mil. Was the fee award part of an unlawful "coupon settlement" under the Class Action Fairness Act? Ninth Circuit: No, because some users could get their award in cash (even though less than 5% did).
  • No reasonable jurist could find, says the Tenth Circuit (unpublished), that a court order telling a woman to stay away from her ex is so restrictive that she is "in custody." So her habeas corpus claim was properly tossed. But it was not proper to toss one of her other claims—challenging the constitutionality of the Colorado statute that authorizes such protection orders (rather than the protection order itself)—on Rooker-Feldman grounds.
  • Courthouse News Service is back at it, suing state-court clerks for failing to provide quick enough access to newly filed civil complaints. District court: Statewide, New Mexico courts must provide non-confidential complaints no later than five business hours after receipt. Tenth Circuit: We agree with the district court that the state courts' inevitable Younger argument is a non-starter. But the district court's bright-line five-hour thing doesn't give the New Mexico courts enough flexibility (e.g., to account for clerks taking sick days). The district court's preliminary injunction is vacated and should be modified to accommodate extraordinary circumstances or a substantial-compliance standard.
  • Remember that "special master" appointed to oversee the documents seized at former President Trump's country club home? Eleventh Circuit: He's not so special anymore.
  • Since 1873, veterans' benefits have been untouchable by creditors, tax authorities, and judicial orders. But how about Florida prison officials, who took money from an inmate's account (funded by transferring his VA benefits into the account from an outside credit union) to satisfy debt that he incurred in prison? Eleventh Circuit (over a dissent): Who knows. All we can say is that the prison officials are entitled to qualified immunity and the inmate lacks standing to challenge a state rule directing prison officials to leave the money be only if it's deposited directly by the VA into the inmate's account.
  • Jackson County, Fla. sheriff's deputy pulls driver over for swerving and then, ticket written but not delivered, orders the driver out of the truck so a drug doggie can have a sniff. (No drugs found, but the ensuing physical altercation results in obstruction charges for the driver.) Eleventh Circuit: No qualified immunity for prolonging the stop. The deputy should have cut the driver loose after writing the ticket. Partial dissent: Heck, I would have denied immunity for the initial stop too. It's not even clear the driver was actually swerving.
  • Portions of the Florida Panhandle are lovingly referred to as Floribama, and there's even a regionally famous bar that since 1964 has been called the Flora-Bama Lounge, Package and Oyster Bar. Does the bar have a trademark claim against the Jersey Shore spinoff, MTV Floribama Shore? (Ed.: Laugh if you want, but the beaches of the Florida panhandle are without doubt the most beautiful in the state.) Eleventh Circuit: They do not; this is a situation where the First Amendment trumps the Lanham Act.
  • And in en banc news, have you ever wondered about the phrase "en banc"? Didn't it use to be "in banc," like not that long ago? And how do you say it? The answer to the second and third questions can be found in this scholarly work by IJ's Anthony Sanders and stalwart former IJ clerk Matt Liles, forthcoming in Judicature, Duke's scholarly journal about the judiciary.

Friends, this week IJ released the third edition of "License to Work: A National Study of Burdens from Occupational Licensing," a wildly useful report on the burdens of occupational licensing on lower-income Americans. What's changed since the last edition (in 2017)? States actually eliminated a few licenses and made others slightly less burdensome to obtain, which, yes, is only a teeny step in the right direction. But given that states have consistently gone in the wrong direction for the last hundred years or so, it's still pretty neat. Click here to learn more.