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.
Cleveland-area friends, won't you join us tomorrow night—Sat. Feb. 18—at the Grog Shop for a night of comedy and fulminating against qualified immunity? Click here to RSVP.
- UMass Dartmouth law professor brings a First Amendment suit challenging the designation of UMass Faculty Federation, Local 1895 as the exclusive collective bargaining representative for his designated bargaining unit. He doesn't want them speaking on his behalf. First Circuit: Well, you're not required to pay union dues and nobody is prohibiting you from speaking, so we're going to join the eight circuits—including our own—that have already rejected this argument.
- Allegation: U.S. Secret Service agent swears out criminal complaint accusing protestor at 2016 Democratic National Convention in Philadelphia of breaching a restricted area. Yikes! The agent wasn't there and didn't review any video, which shows that police pulled the protestor into the restricted area. Agent: You can't sue a federal officer for violating the Constitution. Third Circuit: That may be, but (over a dissent) it's too soon to say. Interlocutory review is a qualified immunity thing not a Bivens thing.
- Circuit Split Alert! The Fourth Circuit joins with the First and Eleventh Circuits, holding that Americans with Disabilities Act "testers"—who search for ADA violations and file cases about them—have standing to sue hotels that fail to provide adequate information about accessibility features through booking websites like Expedia or Orbitz. The Second, Fifth, and Tenth Circuits have rejected this argument, finding no standing where plaintiffs—including this same plaintiff—did not allege or prove an intention to actually book rooms at the defendants' hotels.
- Allegation: Louisiana officials kept inmate in prison for over two years after he should have been released. Fifth Circuit: It's clearly established and "should go without saying" that holding people past their release date violates the Constitution. But this plaintiff did not show that it was "objectively unreasonable" for officials to violate clearly established law. Qualified immunity.
- Louisiana man spends 30 years in prison for a murder he did not commit. After being freed in 2014, he—and, following his death, his estate—sues for malicious prosecution. The district court dismisses because there is no such thing as a malicious prosecution claim in the Fifth Circuit. But wait! SCOTUS has since ruled there is indeed such a thing. Fifth Circuit: Nevertheless, there's no need to remand for another look. And maybe don't lose too much sleep over this one, the court suggests: Though wrongly convicted as the triggerman, he arguably could have been convicted of second degree felony murder based on his extensive involvement in the robbery that led to the murder, in which case, he'd never have been freed.
- Driver near Youngstown, Ohio, is stopped, and the $774k in his trunk is seized. Forfeiture case ensues. Man: The money's mine. Gov't: Would you kindly answer some discovery requests? Man: I would not. District court: The man hasn't sufficiently established the money's his, so he lacks Article III standing to contest the forfeiture. Sixth Circuit (unpublished): Well, he did swear under oath that he was the money's owner, which seems like it should be enough for standing. Dissent: The guy violated pretty much every discovery rule under the sun.
- This Lexington, Ky. comedy of errors involves a garden shed aflame; a fire investigator's request to access a neighbor's surveillance footage; the neighbor's refusal; a sketchy warrant affidavit for the footage; issuance of the warrant; police executing the warrant on the neighbor's house; the neighbor's mom burrowing through a ceiling to (the gov't claims) extract 5 kilos of cocaine; a toilet clogged with a mysterious white substance; and two-thirds of a Sixth Circuit panel holding that all of it violated the Fourth Amendment because there had been no probable cause to suspect arson in the first place. (NB to snoots: Forgive the rampant fused participles above. Some of your correspondents just love to watch the world burn.)
- There is no Snapchat exception to the warrant requirement, says the Seventh Circuit, in holding that Springfield, Ill. police violated the Fourth Amendment when they spotted a Snapchat video of a local felon in possession of a gun, rolled over to his house, walked onto his porch, found the firearm, and arrested him. Snapchattery may be a modern innovation, but respect for the sanctity of the curtilage is embedded in our nation's history.
- In 2018, Milwaukee-area officials removed a dam from the Milwaukee River, causing the water level upstream to subside and leaving a homeowner there with a swampy patch of land where the river used to run. An unconstitutional uncompensated taking of his property? The Seventh Circuit says no.
- Allegation: Stockton, Calif. police take man at Cinco de Mayo festival to ground without warning. With his arms pinned under his body, he's unable to put his hands behind his back. An officer repeatedly strikes his leg with a baton, breaking it. He's charged with resisting arrest, but the case is dropped after he pleads no contest and stays out of trouble. District court: Which is the functional equivalent of a conviction, so he's barred from suing for false arrest and excessive force. Ninth Circuit: Reversed. Pre-trial diversion agreements are not convictions. Heck does not bar. [IJ filed an amicus brief urging this course of action.]
- Allegation: Unruly inmate at Oklahoma County, Okla. jail is escorted to a cell, where a 320 lb. officer kneels on his back to uncuff him. Afterwards, he lies unmoving for nearly six hours before a nurse finds him unresponsive. Jesus wept! He's dead of a severed spinal cord. Officers: Okay, but what if that's not what happened? Tenth Circuit (unpublished): Then we can't hear your appeal. Fact disputes belong in front of a jury. No qualified immunity.
- And in en banc news, the Second Circuit will reconsider its decision that former high school athletes do not have standing to challenge the Connecticut Interscholastic Athletic Conference's policy of allowing transgender students to compete in women's track and field.
- And in more en banc news, the Second Circuit will not reconsider its decision that the Federal Arbitration Act covers a class of commercial drivers despite a recent Supreme Court decision seemingly to the contrary.
State constitutions are beautiful and special, and it's a darn shame when courts don't realize that. So it's with a heavy heart that we tell you this week the Minnesota Supreme Court scorned the provisions of the state constitution that guarantee equality of treatment. Instead, the court continued to apply wholesale the language (and lax standards) of the federal equal protection clause—words that do not appear in the Minnesota Constitution. Click here to read IJ's brief (in support of neither party) urging the court to attend to the history of the actual language in the constitution, how it was interpreted in the early years, and how things went off track. Or click here to see the ruling, which rejects an ACLU challenge to state voting laws involving felons who are out of prison but haven't served their full sentences.
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