The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Chastising finger wags, derogatory reports, and steel threats.


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

Friends, come join us in D.C. on Tuesday, March 7 for a symposium on Shielded: How the Police Became Untouchable, a timely new book by Joanna Schwartz. The event will feature panels on official accountability—including an appearance from one of the plaintiffs in Monroe v. Pape!—as well as a live recording of the Short Circuit podcast. Co-hosted by IJ and the Georgetown Center for the Constitution, the event will take place at the law school. Click here for details and to RSVP.

  • For over 50 years, New York City has enforced multiple iterations of its "rent stabilization" law, which it has repeatedly amended in the face of a seemingly perpetual lack of affordable housing. Will the Second Circuit say these restrictions work an unconstitutional taking, or will it instead call them an exercise of "finely tuned, legislative judgment"? Click the link to solve the mystery! (It is not, granted, a particularly difficult mystery to solve on your own, but the link's right there.)
  • But wait! New York's rent regulations may not work a taking on their face, but perhaps they're unconstitutional as applied! What will the Second Circuit say about that? (Again, it says what you expect. But if the courts refuse to provide dramatic tension, your editors reserve the right to manufacture it.)
  • In Lackawanna County, Penn., if a court finds you can afford to pay child support but you didn't, you get a prison term and won't have access to work-release to earn money unless you spend the first half of the sentence doing "community service" at a private recycling center, for nearly no pay in unsanitary and dangerous conditions. Third Circuit: That may sound like involuntary servitude, but it doesn't violate the Thirteenth Amendment. It does, however, sound like it runs afoul of the Trafficking Victims Protection Act and labor laws. Dissent: "Choices usually come with consequences," and these deadbeat dads should have just paid their kids' child support.
  • A 90-year-old North Carolina law makes it a crime to publish a "derogatory report" about a candidate for office if the speaker knows the report is false or speaks with reckless disregard for its truth or falsity. A campaign threatened with prosecution under the law brings a First Amendment challenge and seeks a preliminary injunction. District court: No likelihood of success on the merits. Fourth Circuit: It's actually difficult to imagine how the plaintiffs could lose.
  • A Winterville, N.C. police officer who ordered a passenger to stop livestreaming during a traffic stop is protected by qualified immunity, says the Fourth Circuit. Prior cases involved video recordings (not livestreams) by onlookers (not an individual being detained). That said, livestreaming the police is indeed protected by the First Amendment, so the claim against the town (which allegedly bans such livestreaming) should not have been dismissed.
  • Just as two wrongs don't make a right, the Sixth Circuit explains that "a policy that benefits out-of-state interests doesn't justify another that burdens them." So Kentucky's tax on its own coal—leading to its own power plants to buy coal from other states—can't be offset by artificially discounting the cost of in-state coal because it likely violates the dormant Commerce Clause.
  • Allegations: Man in Lewis County, Ky. dies of alcohol withdrawal (or dehydration resulting from the same). So why does his death certificate say he died of fentanyl intoxication? And if the jail's doctor (who ignored contractual obligations to visit the jail) called in to say the man should be taken to the hospital, why is there no record of the call? Sixth Circuit: These are some of the questions that should go to a jury. Grants of QI reversed pretty much across the board, and the county may be on hook too for failure to train.
  • At one point in Dickens's Bleak House the doomed Mr. Gridley asks Mr. Jarndyce, "Do you know anything of Courts of Equity?" To which Jarndyce replies, "Perhaps I do, to my sorrow." We won't say if it's sorrowful or not, but the Sixth Circuit takes a bit of a dive into the history of these "Courts of Equity" and their powers of receivership in this case about a debtor who operated a network of colleges and wanted to stay out of bankruptcy (so it would remain eligible for those sweet federal student loans).
  • Ticked off at his sergeant for writing him up, Mansfield, Ohio police officer makes a public records request for her personnel file. Yikes! The file contains a statement given during polygraph exam about "unnatural sexual behaviors, … part of which may have occurred while she was a minor." Can she sue the city's public-records officer for releasing the file without redaction? District court: No qualified immunity. Sixth Circuit (unpublished): Reversed. State law seemingly required disclosure, and the info could arguably help the public evaluate her fitness to be an officer.
  • St. Charles County, Mo. jail nurse does not provide mentally ill inmate with his medications, which his mother had dropped off, instead putting him on suicide watch where he can be closely observed. And indeed an officer—who is reluctant to enter the inmate's cell without backup because of his imposing size and erratic behavior—closely observes as he claws out his own eye. Eighth Circuit: Qualified immunity for the nurse and no penalty to the county for deleting the video.
  • WinRed, Inc. is a federal political action committee that raises contributions for Republican candidates. In the 2020 election it came under fire for allegedly tricking donors by having prechecked boxes for recurring donations and convoluted processes for opting out. In response to an investigation by the Minnesota AG, the group files a federal lawsuit, claiming that, as a federal committee, they aren't subject to state consumer-protection law. Eighth Circuit: The Federal Election Campaign Act doesn't preempt every law that might touch on federal PACs, and it doesn't preempt this one in particular.
  • Video shows angry pretrial detainee throwing a hygiene kit and some papers on the ground (in front of him). A Ramsey County, Minn. jail officer (who was behind him) tackles him, breaking his ankle (among other injuries). Eighth Circuit (unpublished): A pretrial detainee who is agitated but complying with the last order he's been given and not posing a threat has a clearly established right not to be taken violently to ground without warning. No qualified immunity.
  • Police fire tear gas at two members of the National Lawyers Guild who were acting as legal observers at a large protest in St. Louis in 2015—while they were standing on property one of them owned. Eighth Circuit: Sorry, but in 2015 it wasn't clearly established that people had a First Amendment right to observe police doing their job. Dissent: We established it in 2005!
  • "To be sure, handcuffing a well-behaved, unarmed, 83-year-old woman who complied with police direction may violate standards of societal decorum. In hindsight, it seems unnecessary. And grandmas around the country may rightfully wag an experienced finger chastising the police action here. But . . ." So writes the dissent in this (unpublished) Ninth Circuit opinion. No qualified immunity for these decorum-violating Chino, Calif. officers.
  • To seek a writ of habeas corpus, one must be "in custody," and that doesn't necessarily mean "physical custody" (per SCOTUS in 1963). Eleventh Circuit: Nevertheless, individuals subject to Florida's lifetime registration and reporting requirements for sex offenders are not in custody. Concurrence: Custody ought to mean physical custody.
  • Is it an unconstitutional delegation of Congressional authority to allow the President to call steel imports a threat to "national security" based on . . . not much and then slap tariffs on them? Federal Circuit: No, and there was no statutory time limit problem either.
  • And in en banc news, by a 6–6 vote, the Second Circuit has decided not to reconsider its opinion that a priest—whose appointment as Bishop of Miami of the Russian Orthodox Church Outside Russia stalled after accusations of forgery and swindling—may continue to pursue his defamation claims against the church. The church autonomy doctrine, which counsels courts to stay out of religious affairs, doesn't mean the church is entitled to interlocutory review of some adverse rulings below.

The "Vermont Constitution vigorously protects private-property ownership," and it says so right in the state's declaration of rights, which dates to 1777. Sounds like something we'd write in a brief. But in fact, hearteningly, that quote comes from a recent ruling by the Vermont Supreme Court! Indeed, protecting "citizens' rights to security in their land was a key motivating force in creating the Vermont Constitution." Shout it from the Green Mountains to the Connecticut River and back to Lake Champlain, and click here to learn more.