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.
Friends, it's illegal to operate a food truck in 96 percent of Jacksonville, N.C. And at any given time it might also be illegal in the other 4 percent, owing to a ban on food trucks operating within 250 feet of each other. That's no way to treat hardworking, honest folks who just want to earn a living, so this month IJ filed suit under the state constitution, which protects North Carolinians' inalienable right to "the enjoyment of the fruits of their own labor." Click here to learn more.
- Pennsylvania troopers investigating calls about gunshots walk toward a man's campsite and see two cylindrical devices that they suspect—correctly—to be improvised explosive devices. Man: The tent was an abode and the area around it (including where they found the IEDs) was curtilage for which they needed a warrant. District court: It's an open question in this circuit, but the facts don't support a Fourth Amendment violation. Third Circuit (nonprecedential and with three sentences of analysis): Affirmed.
- "[Y]oung people have an age-old proclivity toward sweets," pronounces the Fourth Circuit, in affirming the FDA's denial of a vape company's request to market fruit- and dessert-flavored e-cigarettes.
- Allegation: In retaliation for suing officials after he was stabbed (at a different facility), inmate at Lee County, Va. federal prison is put in "special housing" for three months. The cell is freezing, covered in mold. For bedding, he's given only a one-inch thick piece of cotton half the length of his body that is covered in hair. Unconstitutional conditions of confinement? Fourth Circuit: Constitution?
- Southlake, Tex. police officer handcuffs, screams at distressed, autistic 8-year-old in principal's office. Fifth Circuit (2019): Go ahead and sue the (now-former) officer. Fifth Circuit (2022, unpublished): But the claims against the city for disability discrimination were properly dismissed. "[T]here is no indication that [the officer] would not have delivered the same message, in the very same manner, to a non-disabled student who … acted as [the child] did." [Ed.: The officer's next gig? Police chief.]
- Louisiana law forbids anyone from providing "respite care" to the elderly without first persuading state regulators that these services are needed. And the Fifth Circuit says that law may be motivated by economic protectionism, but it is not motivated only by economic protectionism and is therefore constitutional.
- If this Eighth Circuit opinion about qualified immunity and Medicaid benefits were to be filed in the D.C. Circuit, your correspondents are morally certain it would be bounced for UWTMASWTMWTF (Using Way Too Many Acronyms. Seriously. Way Too Many. WTF). But at least it's not in Garamond font—a separate and equally unforgivable sin in our nation's seat of government.
- Bad news: Prisoner is put in solitary in an Arizona state prison because, among other reasons, he's a member of a gang. Good news: There's an annual opportunity to appeal and get out of solitary! All you have to do is renounce your gang membership, prove it, and go through a whole lotta bureaucratic steps. Bad news: Prisoner is found with evidence that he's still kind of maybe into the gang. Good news: There's a way to appeal that determination! Bad news: Appeal is denied and the Ninth Circuit says that was just fine. Dissent: The prison appeals process appears to be a mirage.
- Disgruntled employees of Clark County, Wash. electrician turn cell-site location information over to state regulators, leading to fines against the electrician for improper supervision of journeymen electricians. The electrician sues, alleging that the regulators violated the Fourth Amendment when they obtained the data without a warrant. Ninth Circuit: You're mixing up your Fourth Amendment doctrines. The Supreme Court has held that the "third-party doctrine" does not apply as an exception to the warrant requirement for cell-site location data, but this case is governed by the "private search" exception to the Fourth Amendment, which has no such limitation.
- Allegation: Phoenix, Ariz. high school student—an enrolled member of the Sisseton Wahpeton Oyate tribe—wants to decorate her graduation cap with an eagle feather, a culturally significant religious symbol. Uh oh! The rules say no decorations on graduation caps, and she is prohibited from attending. Double uh oh! The school let other students wear secular messages on their caps. A First Amendment violation? Ninth Circuit: Could be. Case undismissed. Partial dissent: It could also be that those other students just broke the rules and didn't get caught; the plaintiff should add more allegations of selective enforcement.
- Tenth Circuit, in a PSA to cops: There is no misguided-flirtatiousness exception to the Fourth Amendment's warrant requirement.
- Allegation: Disregarding dept. policy, Oklahoma City officer barges into the home of armed, suicidal woman and tases her. In another incident, he disregards felony traffic stop procedures and shoots and kills a motorist. He fails to follow up on a report of child abuse and fails to properly book evidence. Tenth Circuit (unpublished): None of which put the chief on notice he'd barge past fellow officers and shoot and kill an unarmed, suicidal man. The claims against the city can't go forward. (The officer was convicted of murder.)
- Does a Florida life insurance policy that denies death benefits in the event of suicide have to pay out if the insured commits "suicide by cop"? Eleventh Circuit: No, for the same reason it wouldn't pay out if he committed "suicide by train." The cops/train may have killed the insured, but he set it in motion.
- It goes against all reason and experience, but the Eleventh Circuit holds that Crum may benefit from Couch's demise.
- And in en banc news, the D.C. Circuit will not reconsider its decision that it lacked jurisdiction to review the Federal Election Commission's decision not to pursue charges against a group alleged to have failed to register as a political committee. The original panel held that so long as any part of that non-enforcement decision was based on prosecutorial discretion, it was unreviewable. Two judges dissent from denial, arguing that the rule allows the commissioners to game the system, invoking prosecutorial discretion when they think their legal reasoning is a stretch, while omitting it when they feel confident of a victory in court.
- And in more en banc news, the Sixth Circuit (over two dissentals) will not reconsider its decision that victims of an Ohio State University athletic doctor who sexually abused hundreds of students between 1978 and 1998 can overcome the two-year statute of limitations if the university covered up its own deliberate indifference.
- And in still more en banc news, the Ninth Circuit will not reconsider its decision that Twitter lacked standing to challenge a Civil Investigative Demand (CID) issued by Texas Attorney General Ken Paxton, asking the company to produce documents relating to its content moderation decisions. The original panel held that even though the CID may chill Twitter's speech and the case was constitutionally ripe, the case was not "prudentially" ripe because Twitter had the option of ignoring the CID.
- And in new cert petition news, the Eighth Circuit ruled in 2020 that a St. Paul cop working on a joint state-federal task force who framed a pair of teenagers for a nonexistent crime could not be sued in her capacity as a federal officer. (The teens spent about two years in prison.) Then this year, the same court ruled that she cannot be sued in her capacity as a state officer either. Absolute immunity? For knowingly putting innocent people in prison? SCOTUS, please no. Click here to learn more. Or click here to read exoneree Amanda Knox's amicus brief in support of cert.
- And in more new cert petition news, the D.C. Circuit recently ruled that it is rational for District of Columbia officials to require childcare workers to get a college degree. It is hypothesized that this will lead to some benefits, and perhaps it will—for people who give out the degrees. For everyone else, including D.C. parents (who already face the highest childcare costs in the country) and childcare providers (who may not speak English as a first language and who definitely don't need advanced math classes to do their job), SCOTUS, please no. Click here to learn more.
- And in additional new cert petition news, Ohio state courts have turned aside a Good Samaritan's attempts to use his private property in Akron—an old clay-tile making factory and its backlot—to shelter the homeless from life-threatening cold when no indoor housing is available. Click here for a lovingly crafted, in-depth podcast episode about the case—and to hear the shelter's neighbors plead unsuccessfully with the city not to close it down. Or click here for more on the case itself.
- And in reply brief news, would you believe the feds are arguing—and the First Circuit agreed—that the Eighth Amendment's prohibition on excessive fines does not apply to civil penalties? Penalties such as the $2.17 mil the federal gov't is trying to charge an octogenarian for failing to fill out a one-page form. (She notified authorities of the oversight herself.) SCOTUS, please no. Click here to learn more.
- And in amicus brief news, IJ is asking the full Fifth Circuit to affirm its denial of qualified immunity to Laredo, Tex. officials who retaliated against a critical journalist by having her arrested and prosecuted under an obscure public-corruption statute that no journalist has ever been subjected to. Her purported crime? She asked a police source to corroborate some facts, and they did.
If you are reading this, you already know: Qualified immunity is an absolute disaster for sound governance, good order, and the very soul of the nation. If you agree, please join Americans Against Qualified Immunity—a coalition of individuals founded on the belief that if we must follow the law, then government employees must follow the Constitution. Joining Americans Against Qualified Immunity means joining thousands of other voices calling for an end to this unconstitutional, unjust, and un-American doctrine. Visit AAQI.org to learn more.