The Volokh Conspiracy

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


Short Circuit: A Roundup of Recent Federal Court Decisions

Bogus arrests, bogus charges, and bogus seizures.


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

New on the Short Circuit podcast: bags of dope, unlawful assembly, and an invitation to assemble in centennial celebration of one of the most sweeping defenses of individual liberty in history, Meyer v. Nebraska.

  • In response to a public records request, ICE turns over 21 spreadsheets to the ACLU. But wait! The records are pretty useless because they lack any personal identifiers. ICE: Those are exempt. We can't go around sharing people's records! ACLU: But you can substitute anonymized identifiers so we know which records belong to the same person without identifying the person. District court: No, that's creating a new record, which FOIA does not require. Second Circuit: Reversed.
  • Gang member is convicted of witness retaliation and sentenced to three years in prison after attacking a former member of his gang on the street in the Bronx. Second Circuit: New trial. The defense was not allowed to sufficiently screen for anti-gang bias among the jurors. "[D]istrict judges are afforded broad discretion in conducting voir dire. That discretion, however, is not boundless."
  • This Second Circuit case is about whether various New York state actors are entitled to Eleventh Amendment immunity in a suit about an easement, brought by the Seneca Nation. Interesting stuff. Equally interesting: It's also a case study in the Second Circuit's practice (unique among the federal courts of appeals?) of letting each judge hew to his or her own idiosyncratic document-formatting preferences. Compare Majority Opinion (embracing wide-margins and single-spaced text), with Dissenting Opinion (favoring ~one-inch margins and double-spaced text).
  • Board of Immigration Appeals: Sure, a gang harassed you, threatened you, and repeatedly beat you, and then, when you skipped town, took their revenge by beating up your father and raping your sister. But it only counts as "past persecution" if you had to get a medical doctor involved. Third Circuit: Guys. Guys. No.
  • It's March 2020. Officials in North Carolina's Outer Banks ban (with four days' notice) non-resident property owners from entering the county, ultimately for 45 days. An unconstitutional uncompensated regulatory taking of this Richmond, Va. couple's beach house? Fourth Circuit: Why no privileges and immunities claim? And no.
  • What's the difference between an "interpretive rule" and a "legislative rule" under the Administrative Procedure Act? The Fifth Circuit explains while invalidating an FAA rule that, being "legislative," was void because it failed to go through proper notice and comment procedures.
  • It's March 2020. Over the weekend, lawyer mom is told by her law firm that they're going to give this "work from home" thing a try on Wednesday, March 18. But just one day. As the rest of the world is grinding to a halt, her son's daycare shuts down. She asks if she can WFH Monday and Tuesday as well. Law firm denies the request, so she uses PTO. Then does WFH on Wednesday. Goes just fine. Says she'll be back in on Thursday. But son has COVID-like symptoms that aren't getting better, so Thursday morning asks HR if she can WFH on Thursday and Friday. HR says fine. Turns out not-so-fine, though, as later that day the lead partner overrides HR's decision and fires her. FMLA violation? Sixth Circuit: She's certainly stated a claim.
  • Allegation: Livingston County, Mich. probation officer is critical of county prosecutors' discriminatory practices, and they retaliate by ginning up bogus perjury charges and getting her suspended from her job. She sues for violations of her First and Fourth Amendment rights, among others. The prosecutors open up the pack of gov't immunity cards and play . . . ALL of them: prosecutorial, sovereign, qualified, and state-law. Sixth Circuit (unpublished, over a dissent): Immunities (mostly) denied, case can proceed.
  • Milwaukee man is convicted of shooting three men at a 2009 party, killing one. After his conviction, a new eyewitness emerges who says the prosecution's lead witness was actually the shooter. Habeas? Seventh Circuit: Failure to satisfy state procedural rules precludes relief, and there is insufficient evidence of actual innocence to get around that barrier. Dissent: A state judge found the new witness credible, and the state's evidence was pretty shaky, so there's enough evidence of actual innocence that we should consider the constitutional claims.
  • Between 1993 and 2017, Chicago classified aviation security officers at O'Hare Airport as law-enforcement personnel, which came with perks like getting to arrest people and being allowed to carry concealed firearms after retirement. In 2017, the city changes its mind about the classification. A violation of the Fourteenth Amendment's Due Process Clause? Seventh Circuit: Decidedly not.
  • Jane Doe plaintiff goes to the St. Louis VA Medical Center to receive battlefield acupuncture (BFA) therapy—a form of therapy that involves placing needles or tacks into five spaces in a patient's ear—to treat her hip pain. The nurse practitioner performing this hocus pocus also sexually assaults Doe. She sues under the Federal Tort Claims Act. Eighth Circuit: Sexual assault wasn't part of his job duties, so there's no FTCA claim.
  • Paraplegic serial ADA litigant sues California "Lobster Shop" because its parking lot is inaccessible to his modified van. This is the latest in his nearly 2,000 ADA lawsuits. Ninth Circuit: Nothing wrong with being a serial litigant under the ADA. Dissent: But the district court concluded after a bench trial that the plaintiff had no real intention of ever returning to the shop—a claim he makes in every case. That wasn't plainly erroneous, so he lacks standing.
  • Another week, another case of a prisoner who died because of incompetent medical care, this time out of Oklahoma. Tenth Circuit: But at least some of her estate's claims may go forward.
  • Seventeen-and-a-half-year-old girl, a member of the Choctaw nation, orchestrates the murder of her abusive and neglectful parents by two underage friends. The gov't charges her with two counts of first-degree murder, crimes for which the mandated punishments—death or life without parole—are unconstitutional as applied to minors. She challenges the transfer of her case from juvenile court. Tenth Circuit: Her constitutional claim is unripe—she may be acquitted. Though the facts are tragic, the district court properly weighed the transfer factors. Dissent: No, it didn't.
  • In which the Tenth Circuit illustrates the difference between things states may not legally do (which includes interfering with the interstate transportation of hemp) and things states may do without fear of being sued (which, apparently, includes seizing all your hemp plants at the airport).
  • The Eleventh Circuit is the latest to rule on the tax offset provision in the American Rescue Plan Act, splitting with the Sixth (somewhat) and Eighth on standing, and concluding Congress's "offset provision" forbidding states from lowering taxes after taking COVID-19 stimulus goodies was unconstitutional.
  • Sitting en banc, the Eleventh Circuit finds that the Constitution provides no remedy if officials jail you on a decades-old warrant from another state for a person with the same name—a name that is shared by thousands of people—and fail to check for the very obvious differences (height, weight, tattoos, birthdate, Social Security number, fingerprints) between you and your wanted homonym. Also, if officials threaten you when you try to tell the judge about the mix-up, that's fine too.
  • And in en banc news, the Ninth Circuit will not reconsider its opinion that talk therapy is a form of medical conduct that, for First Amendment purposes, is indistinguishable from brain surgery. Five judges disagree, and Senior Judge O'Scannlain's statement respecting denial of rehearing en banc makes arguments that sound an awful lot like those in IJ's amicus brief in support of rehearing.
  • And in amicus brief news, IJ is asking the Fifth Circuit to affirm the denial of qualified immunity to St. Tammany Parish, La. officers who took their time, got legal advice, calmly deliberated, and then arrested a former officer for criticizing them after being told by the district attorney such an arrest would be unconstitutional.

Friends, is it rational to require end-of-life doulas, who help the terminally ill and their families host home funerals, to build a funeral home that will just sit empty? California regulators say yes, but this week a federal district court ruled no: There is no health, safety, or consumer protection justification for such a requirement. And moreover, barring the doulas from providing end-of-life planning advice and from truthfully advertising their services violates the First Amendment. Hurrah for good sense, judicial engagement, and rational basis with bite! Click here to learn more.