The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Cicero, Bentham, Coke, and Kierkegaard.


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

Anita Adams wants to build a modest addition on her property in Seattle so that family members can move in, but the city says she must pay nearly $77k in "housing affordability" fees to get a permit. Which means she cannot afford the addition and there will be less housing. Click here to learn more about IJ's latest case.

Survivor of a woman who died in childbirth sues obstetrician for medical malpractice in Massachusetts state court. The federal government removes the case under the Westfall Act and substitutes itself for the doctor because he was a federal employee, then gets the case dismissed based on shorter statute of limitations for suits against the government. On appeal, the government confesses the doctor actually wasn't a federal employee, but it defends the result based on a different statute. First Circuit: After conducting some tamisage (Judge Selya alert!) on this messy case, there isn't enough evidence to rule on the government's Johnny-come-lately theory. Case remanded.

Former high school athletes sue the Connecticut Interscholastic Athletic Conference, alleging that the conference's policy of allowing transgender students to participate in women's track and field violates Title IX. As a remedy, the plaintiffs want an injunction requiring the conference to amend the results of competitions they lost to transgender athletes. Second Circuit: Even if plaintiffs had a cognizable injury, amending the results would provide only personal satisfaction, which isn't enough for standing.

Virginia inmate receives bad medical care, delaying treatment for his hepatitis C until he had developed terminal liver cancer. His estate sues, alleging violations of the Eighth Amendment and state-law malpractice. Fourth Circuit: There's enough here for the Eighth Amendment claims to go to a jury, so no qualified immunity. But because the doctor was a state employee, the malpractice claims are barred by sovereign immunity. Dissent: The doctor may have been negligent, but there's no evidence he was deliberately indifferent to the inmate's medical needs.

Fifth Circuit (2020): In a case about the First Amendment right to distribute information about 3D printed firearms, the W.D. Texas erred when it dismissed claims by Defense Distributed and the Second Amendment Foundation against the New Jersey Attorney General for lack of jurisdiction. Fifth Circuit (2022 pt. 1): The W.D. Texas erred again when it severed those claims and transferred them to New Jersey; we can't order the D.N.J. to send the claims back, so we order the W.D. Texas to request that the claims be transferred back. D.N.J. (2022): No. Fifth Circuit (2022 pt. 2): If you won't honor the trial court's request, then we humbly beseech you to honor ours. D.N.J. (2022): Still no. Fifth Circuit (2022 pt. 3): [with barely concealed rage] Ordinarily, these requests are honored in the interest of comity, but there's nothing we can do.

President Biden's executive order requiring most private employees working on federal contracts to be vaccinated against COVID-19 is the latest piece of executive branch lawmaking to—over a dissent—meet the Fifth Circuit's administrative abattoir.

You know those airport cops who chivvy your car along when you're trying to pick up family members in the arrivals lane? Well, in Houston, the more dedicated ones go the extra mile and curse at you and punch you in the face in front of your wife and daughter and grandchild. Fifth Circuit: The excessive-force claim against the officer may proceed.

In which the Fifth Circuit invokes Cicero, Bentham, and Coke for the proposition that, no, litigants can't just agree among themselves that court records shall be kept secret. Knock off the "overbroad sealing practices," guys.

Tippah County, Miss. man rapes a 17-year-old, bludgeons a 16-year-old in the head with a hammer, and then kidnaps and murders a 20-year-old. (He commits the final crime while out on bond, four days before his first trial was set to begin.) He unsuccessfully presents an insanity defense at his three separate trials and is convicted of all three attacks. In his habeas petition for the rape conviction, he argues that he received ineffective assistance of counsel relating to the insanity defense. Fifth Circuit: Even if a prisoner can satisfy AEDPA, he must still show factual innocence to prevail. This guy argues only legal innocence and is factually guilty as sin—he loses.

A 10-foot buffer zone that prevents speech and leafletting outside the entrances of Louisville, Ky. medical facilities probably violates the First Amendment, says the Sixth Circuit. For starters, it applies to all medical facilities—not just the abortion clinic where protesters have committed vandalism and other torts in the past. And it also burdens these plaintiffs, who say they just want to engage in compassionate, non-threatening conversations—not protests. The district court is reversed; the buffer zone is preliminarily enjoined.

Either/Or was Søren Kierkegaard's disquisition on the conflict between the aesthetic and the ethical. With that in mind, please note that "children comply with any number of grammatical rules without awareness even of their existence" is not from Kierkegaard's analysis of the subjectivity of freedom, but instead a phrase from the Sixth Circuit's disquisition on And/Or, and whether "and" means one or the other when it comes to safety-valve relief under the First Step Act. With a dissent, the Sixth Circuit joins the Fifth, Seventh, and Eighth on the "or" side of the slash, in a growing split with the Ninth and Eleventh.

Have you ever wondered where the line falls between "sending juvenile emails mocking a citizen's disability in your official capacity as a government attorney" and "sending juvenile emails mocking a citizen's disability in your private capacity as a dude who thinks that's a good idea for some reason"? The Sixth Circuit (unpublished) has you covered.

Allegation: Gay female Ohio State Highway Patrol sergeant is reprimanded for minor infractions that male officers are not and subjected to vile insults from supervisors (one of whom puts a picture in her locker of naked women in sexual embrace and with a snake protruding from one's vagina). She is ultimately constructively fired over a forearm tattoo, which male officers also have and which don't violate policy in any case. District court: Could be sex and sexual orientation discrimination. Sixth Circuit (unpublished): Our caselaw is unclear on what happens when the officials who do the harassing are not the ones who do the firing. So qualified immunity, and, no, we're not going clear anything up for next time.

Through Lucas County, Ohio child welfare worker's efforts, siblings are removed from neglectful (and for one child, abusive) home and placed in what the Sixth Circuit (unpublished) calls a "living hell." And, contrary to the district court, officials who fail to look into past reports of sexual abuse against potential foster parents and then delay investigating current reports are not entitled to qualified immunity.

On Valentine's Day 2020, 45-year-old Illinois man strikes up a conversation on a dating app with "Bailey," who claims to be 18. After two days of flirty conversation, Bailey admits she's only 15, but still wants to meet up for sex, a request she makes at least 11 times. When the man shows reluctance—he doesn't want to go to jail because he has a daughter, you see—Bailey promises she can keep a secret and the man agrees to meet her at a romantic nearby gas station. Readers, you will never guess what happened next. "Bailey" was an FBI agent the whole time! The man is convicted of attempted enticement of a minor. Seventh Circuit (over a dissent): But he put forward enough evidence that the jury should have been instructed on entrapment. New trial!

Allegation: Illinois inmate doing laundry feels a pop in his back and shooting pain. He doesn't receive medical attention for six days, and, even then, he's prescribed psychiatric meds that exacerbate his symptoms rather than help. District court: Case dismissed for improperly joining unrelated claims. Seventh Circuit: There was legal error here—by the district court. The claims related to the same series of events, so they were properly joined, and his complaint shouldn't have been dismissed.

Five days after being booked into Macon County, Ill. jail, man dies of diabetes ketoacidosis. Yikes! Though his blood-glucose level exceeded 500 (300 requires emergency care), the jail nurse said he was a faker and corrections officers just stood around and watched him die. District court: To trial the case will go. Seventh Circuit: Qualified immunity for the corrections officers, who may reasonably rely on jail health professionals' judgment. And sure, the nurse was bad here, but not so bad that every reasonable officer would've understood that they couldn't defer to her. (Claims against the nurse appear to have settled.)

Swimming against the COVID-mootness tide, a "pro-masking plaintiffs" case, involving students asking for pro-masking reasonable accommodations from a Georgia school district, is not dead yet (or at least not moot yet) in the Eleventh Circuit.

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