The Volokh Conspiracy

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


Short Circuit: A Roundup of Recent Federal Court Decisions

Boisterous school children, suspicious mispronunciations, and convicted misdemeanant Don Blankenship.  


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

For over 150 years, Vermont parents have been able to use a tuition stipend to send their kids to the K-12 school of their choice, private or public, if their local school district doesn't provide instruction for their child's grade-level—a unique program to address the costly problem of educating children in rural areas. Some parents even send their kids to Canada! And this month, a federal judge signed off on a consent decree that allows families to—once again—use the stipends at religious schools. Mazel tov! Click here to learn more.

  • Feds: Hey Second Circuit, could you issue a revised opinion in this drug sentencing case? We want you to make clear that the part that could help out future New York criminal defendants was dictum. Second Circuit: Dictum? We hardly know 'em! (Which is more substantive legal analysis than your bad-faith argument deserves.)
  • In 2005, New Jersey man is convicted in state court of aggravated assault for shooting someone four times in the back. But was this a crime of violence for the purposes of a sentencing enhancement under Section 4B1.2(a) of the U.S. Sentencing Guidelines? The Third Circuit consults learned treatises, among other sources, and determines the answer is yes.
  • In First Step Act "safety valve" news the Fourth Circuit adds its name to the "and means and and not or" column. It joins the Ninth and Eleventh Circuits, while staring at them across the other side of the "will no one rid me of this troublesome split" are the Fifth, Sixth,  Seventh, and Eighth Circuits.
  • Man robs an Asheville, N.C. barbecue joint and then pleads guilty to both federal robbery conspiracy and a charge for firing a gun during the robbery. Court decisions years later say the conspiracy charge can't support the gun charge (though actual robbery could). Fourth Circuit: Under current law, his gun charge would be invalid, so it must go. Dissent: He should have to show the outcome would actually have been different if the plea bargain had played out under current law, and he can't because nobody doubts he committed robbery while firing a gun.
  • Tip for agricultural and laboratory employers: If you want to discourage undercover animal-cruelty investigators from gaining employment under false pretenses so they can secretly record video and release it to the public, just go the old-fashioned route and require your employees to sign non-disclosure agreements. Because if you instead rely on the state to create a special cause of action to deal with the problem, there's going to be a lengthy and complicated judicial opinion about whether this new cause of action violates the First Amendment. See, e.g., the Fourth Circuit's recent opinion in PETA v. Stein, holding, by a 2-1 vote, that North Carolina's Property Protection Act is largely unconstitutional.
  • Don Blankenship made his name as a West Virginia coal baron whose failure to abide by mine safety laws led to the death of 29 miners and his later conviction on conspiracy charges. More recently, he ran for U.S. Senate, losing spectacularly while also producing one of the wackiest campaign ads of all time. Following his ignominious defeat, Blankenship brought defamation claims against every journalist who had the gall to refer to him as a felon—one convicted of a crime punishable by more than a year of incarceration—when he was actually a misdemeanant sentenced to exactly a year of incarceration. Fourth Circuit: "[A]t the end of the day, the record does not contain evidence that the commentators and journalists responsible for the statements were anything more than confused about how to describe a person who served a year in prison for a federal offense," which means no actual malice and no claims.
  • Is a South Carolina law that prohibits conducting oneself "in a disorderly or boisterous manner" unconstitutionally vague as applied to school children? Given that the state refers hundreds of them for prosecution each year, it sure seems to matter. Fourth Circuit (over a dissent): "Based solely on the dictionary definitions of the statutory terms … it is hard to escape the conclusion that any person passing a schoolyard during recess is likely witnessing a large-scale crime scene." And since the state doesn't think that all that childish disorder is criminal, there's no way to tell what actually is. Injunction affirmed.
  • In 2013, woman complains on social media about a Spotsylvania County, Va. officer who cited her for a parking violation. In 2019, the woman is pulled over by a different officer (for passing a school bus as kids were boarding), and the first officer calls the second, offering to buy him lunch if he cites her. (He does.) Unlawful retaliation for her protected speech? Jury: We think not. Fourth Circuit: No need to disturb the verdict.
  • A three-hour tour? There's a lot going on in this Fifth Circuit opinion about a federal rule regulating charter boat fishing trips but blindingly obvious references to Gilligan's Island aren't one of them. Instead, you'll find disagreement over whether to mention the (in)famous Chevron case, a rare rejection of an industry qualifying as "closely regulated," and a declaration that the rule requiring GPS devises on charter boats at all times is arbitrary and capricious. But pay special attention to Footnote 3 which solidifies suspicions that today's circuit court clerks take Harry Potter as their cultural polestar and not a 1960s sitcom that made bank in syndication while its actors were left at sea.
  • Troubled teen, who is facing criminal charges for theft and who is (per a counselor and a teacher) a compulsive liar, accuses Comstock Park, Mich. neighbor of sexually assaulting him hundreds of times years earlier. The neighbor is exonerated after spending nine years in prison. Can he sue the investigating officer for malicious prosecution? Sixth Circuit (unpublished): Might have been nice if the officer had checked into the teen's story or the neighbor's alibi a bit more, but there was probable cause to make the initial arrest, so no.
  • Second Amendment enthusiast openly carries rifle with bayonet, handgun, pepper spray, and handcuffs at a West Allis, Wisc. park that is crowded with families. Did her arrest violate the Fourth Amendment? Seventh Circuit: Who's to say. Qualified immunity.
  • If you want to submit a petition to initiate a state statute or amend the state constitution in South Dakota, you can't start collecting signatures more than two years before the election you want to qualify for and you must submit all signatures no less than one year before that same election. A South Dakota ballot question committee challenges these deadlines under the First Amendment. The district court strikes down the deadlines for initiating state statutes but upholds them for the far more grave process of amending a state constitution. Eighth Circuit: Half right. They're both unconstitutional.
  • Man overdoses on heroin, and his wife seeks accidental-death benefits under insurance plan governed by ERISA. Insurance company: It was an intentionally self-inflicted injury. No benefits. If you disagree, you can ask us to reconsider. Woman: Instead, I'll sue. Eighth Circuit: She didn't need to exhaust the insurance company's internal review procedures because they were only mentioned in the denial letter, not in any of her plan documents. And a heroin overdose is an unintended injury. Pay up.
  • This week's award for Outstanding Achievement in the Field of Helpful and Succinct Judicial-Opinion Introductions goes to Judge Friedland of the Ninth Circuit for this banger from a case about the Clean Water Act that your editor gratefully stopped reading immediately afterwards: "When a federal regulation is challenged in court, the promulgating agency may ask the court to remand the regulation to the agency for an opportunity to reevaluate it and correct any errors. Courts often grant such voluntary remands without ruling on the lawfulness of the challenged regulation. The question we face today is whether a court granting a voluntary remand may also vacate the regulation without first holding it unlawful, as the district court did here. We hold that courts lack the authority to do so, and we therefore reverse."
  • Members of a University of Washington committee overseeing live animal research sue to block release of their identities under public-records laws out of fear that PETA and its fellow-travelers will harass them and their pets. Ninth Circuit: The First Amendment doesn't protect your right to serve anonymously on a gov't committee that exists just to comply with federal regulations. Concurrence: I might be worried about PETA, too, but this is a matter of Washington public-records law, not constitutionally protected expression.
  • Man driving from California is stopped in Wyoming for going four miles over the speed limit. Does his mispronouncing his destination, "See Ox Falls," give rise to reasonable suspicion sufficient to support the drug-dog sniff that betrayed 14 pounds of meth in his trunk? Tenth Circuit: No. Who among us hasn't stumbled over the occasional exonym created from a French transcription of an Ojibwe term? But … the presence of an overwhelming "cover odor" in the car? Plus the fact that the car had been rented by a third party, not the driver? And the fact that the rental car was due back in California two days later? Given that concatenation of circumstances, the drug-dog sniff was reasonable. [Thanks for the correction noble commenter Mark Regan.]
  • And in en banc news, the Fifth Circuit will not reconsider its grant of qualified immunity to Castle Hills, Tex. officials who took elaborate steps to have a 72-year-old grandmother arrested on bogus charges after she championed a petition to replace their ally, the city manager. Six judges—appointed by Reagan, Obama, Trump, and Biden— would have reheard the case. (This is an IJ case.)
  • And in further en banc news, the Fifth Circuit will not reconsider its opinion that conviction under federal bribery law (ominously numbered 18 U.S.C. § 666) requires that the jury make a finding of an actual quid pro quo. Judge Ho dissents from denial, arguing that it's passing strange that the fellow in this case could escape conviction for what really looks like a $7k bribe, when in some jurisdictions he could have been convicted of breaking the law for making a $351 campaign contribution, an activity ostensibly protected by the First Amendment.
  • And in more en banc news, the Sixth Circuit will reconsider its conditional grant of habeas corpus to a man convicted of murder by jurors who were permitted to experiment with a particular butter knife and satisfy themselves that the accused could have used it to unscrew screws on a storm window and break into the victim's home.
  • And in additional en banc news, the Ninth Circuit will reconsider its grant of qualified immunity to a San Diego officer who told an arrestee to stop faking as she vomited, moaned, screamed for help, and lapsed into a coma and then, the following week, died.

For many years, Philadelphia officials operated one of the most abusive civil forfeiture regimes in the country. To recover seized homes, cash, and cars, owners had to show up in person to a City Hall "courtroom" that lacked any judge or discernible rules or procedures, and where prosecutors ran the show—often demanding that claimants fight kangaroos to the death. In 2021, IJ secured two consent decrees that put a stop to the madness. And this week—nine years after the class action was filed—the case finally came to an end with nearly 2,400 individuals whose property was wrongly seized receiving an average of $1,476 in compensation. All unclaimed settlement funds were distributed to an array of local charities doing valuable work. Click here to learn more.