The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Herring monitors, state-created dangers, and kicking out the jams.


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

New cert petition: In 2014, in a case of mistaken identity, two plainclothes officers nearly beat an innocent college student to death. And despite a previous trip to the Supreme Court and a couple stops at the Sixth Circuit, the case is stuck on a pretty basic question: Can the now-former student even sue the officers at all? Here's the QP, on which there is a 30-year-old circuit split: Whether the Federal Tort Claims Act's judgment bar, 28 U.S.C. 2676, which this Court has repeatedly said functions in much the same way as the common-law doctrine of res judicata, nevertheless operates to bar claims brought together in the same action.

  • Is Article IV's Privileges and Immunities Clause "reverse incorporat[ed]" against the District of Columbia through the Fifth Amendment's Due Process Clause? D.C. Circuit: Boy, that sounds like a tricky question. Too bad this plaintiff doesn't have standing to raise it.
  • Putative class of Medicaid recipients sue D.C. in 2010, alleging that the District is violating the Due Process Clause (the Fifth Amendment's, naturally) by failing to give them notice and an opportunity to be heard when denying them prescription coverage. District court (2011): Dismissed for lack of standing. D.C. Circuit (2012): Reversed. District court (2014): Dismissed for failure to state a claim. D.C. Circuit (2015): Reversed. District court (2022): Dismissed as moot. D.C. Circuit (2023): Reverse! Reverse! Cha-cha now y'all! And although we're going to deny the plaintiffs' request to reassign the case to a different trial judge, we expect the judge to get a move on and let the case proceed to discovery and the merits. (Yes, discovery has been stayed for the past 12 years.)
  • Cambodian refugee runs into trouble with the law but can't be deported because of diplomatic difficulties. He gets his life together and is a model community member for 18 years, getting married and raising three kids. ICE then begins "a campaign of mass arrests of Cambodian nationals," including the now-dad who is held for 50 days. He sues under the Federal Tort Claims Act and a Massachusetts civil rights law alleging his arrest and detention were illegal, and we all know that this sort of claim is going nowh—but wait! First Circuit: His claim can proceed.
  • In 2018, the National Marine Fisheries Service approved a regulation that required industry-funded monitoring for certain herring expeditions. The owners of long-trip herring ships found this fishy and challenged the regulation. The First Circuit, however, thought that their arguments floundered, thrusting a pike into their legal challenge. After taking a while to mullet over, and in hopes of not carping on for too long, the court dismissed their arguments without being koi, and their challenge was fin-ished. Bass-ically, the court found that, in net, the regulation was valid and did not violate the Constitution. In the end, the court seemed to think that the fishers were just being shellfish, and that industry-funded monitoring might be a necessary way to regulate the herring fishing industry at scale.
  • Plaintiff: Look, I know I lost in state court, but that shouldn't count because I'm a natural-gas producer governed by the Natural Gas Act. You can't let a state court have the final say on important federal matters like the Natural Gas Act. State courts are for, like, cases about the rule against perpetuities, not big-boy federal law stuff. Third Circuit: That's not how any of this works. Case dismissed!
  • In 1990, Virgin Islander is sentenced to 30 years in prison for possession with intent to distribute crack and marijuana. Not long after, in an unrelated case, he's sentenced to serve 10 years for voluntary manslaughter, to run consecutively with his drug sentence. Near the end of his drug sentence, Congress passes the First Step Act of 2018, which allowed those sentenced under the federal government's previous 100:1 sentencing disparity for crack versus powdered cocaine—like this guy—to seek a sentence reduction. Inmate: My unconscionably long drug sentence is already completed; can you knock the time off my consecutive sentence for manslaughter? Third Circuit: Creative idea, but no.
  • Laurel, Miss. police officers appear at car wash in response to a call about an unruly customer. Carwash attendant: Actually, everything's fine now. Customer: Yep, everything's fine. Cops then order customer to leave, repeatedly tase him in front of his kids, and include falsities in the later affidavit and incident report. Man sues. Qualified immunity? Fifth Circuit: No, or, more precisely, no appellate jurisdiction to review the district court's no. J. Oldham, concurring and dissenting: Big-time no, and we do in fact have jurisdiction to say so.
  • Allegation: Fort Bend, Tex. middle school student who is required to be accompanied by staff at all times (for the safety of other students) is allowed to roam the halls. He sexually assaults a student (who has mental disabilities and who was also supposed to be accompanied at all times). Two months later, and though officials were aware of the first assault, they are both again unaccompanied and he again assaults her. Fifth Circuit: In other circuits, you could file a Section 1983 suit over this, but we don't recognize a "state-created danger" exception to the usual rule that you can't sue officials for inaction in the face of harms inflicted by private parties. Concurrence: "I am convinced that it is well past time for this circuit to be dragged screaming into the 21st century by joining all of the other circuits that have now recognized the state-created danger cause of action."
  • Allegation: Sexagenarian inmate at Beeville, Tex. prison is placed in a "shakedown cage" for a meeting with his defense team. After the meeting, officers leave him in the cage without food or water, taunting him as defecates and urinates on himself. Ultimately, he spends 19 hours in the cage. Fifth Circuit (unpublished): Prison sucks, man. What do you want us to do about it?
  • In 2017, a Kentucky jury found Patrick Baker guilty of reckless homicide in the fatal robbery of a local pill pusher and sentenced him to 19 years imprisonment. Two years later, outgoing Gov. Matthew Bevin controversially pardons Baker, whose family happens to have made several contributions to Bevin's political campaign. Then, in 2021 the feds indict Baker again for the drug dealer's death. He's convicted and sentenced to 39 ½ years in federal prison. Sixth Circuit (unpublished): "[W]e are troubled by the timing of Baker's federal prosecution following his state-law pardon, and by the impression that Baker may not have received such a lengthy federal sentence but for his acceptance of a state-law pardon," which we hope is some comfort to Baker as we affirm his sentence in all respects.
  • Sixth Circuit: Dear district courts, we get that it's a pain to have cases on your docket that have been stayed and you have to keep wondering what's going on with them, but that's just life. You can't get around it by "administratively closing" every case that people want stayed. We have Rules about that sort of thing.
  • Ohio man loses control of his car, crashing into two parked cars. He calls 911 and shortly thereafter police show up and just beat the absolute crap out of him. I mean, just really go to town on this guy. Sixth Circuit: No qualified immunity; case goes to a jury. Partial dissent: They should get qualified immunity for taking the driver to the ground—the video makes him look more than usually jumpy—but the prolonged beating and tasing that left him with seven broken ribs, a concussion, and vision and hearing loss were arguably a bit much.
  • University of Cincinnati Title IX Coordinator sowing: "Yeah, I sent [that letter to the school newspaper you explicitly told me not to send], and I don't regret what I did." I will accept "any repercussions." University of Cincinnati Title IX Coordinator reaping: "[A] Title IX Coordinator cannot be insubordinate," so it was illegal for the university to fire me for insubordination! Sixth Circuit: One can, you were, and it wasn't.
  • In 2021, President Biden told federal contractors to ensure their employees were vaccinated against COVID-19. American icon Smucker's sells to the feds. Can employees with religious objections sue the company? The Sixth Circuit's long answer has a lively tour of the state-action doctrine and musings about equitable relief. The short answer? We're not helping plaintiffs out of that jam.
  • Allegation: Deaf inmate at Cook County, Ill. jail fails to respond when guard orders him to return to bed. The next thing he knows, he wakes up handcuffed to a hospital bed, the guard having immediately assaulted him and knocked him unconscious. The inmate files a grievance, which is forwarded to the Office of Professional Responsibility, which takes three months before closing the referral with no action. Meanwhile, the inmate sues in federal court. Sheriff: The case should be dismissed because our rules required the inmate to appeal within 15 days of our referring the case to OPR, even though there's nothing to appeal at that point. District court: No, it should be dismissed because the inmate failed to appeal within 15 days of OPR closing the referral, even though no one told the inmate he could appeal from that. Seventh Circuit: Actually, it shouldn't have been dismissed at all—though others of his claims were properly dismissed.
  • Via the Ninth Circuit, in which state bureaucrats spend three years fighting with federal bureaucrats because some Native Alaskans ate five deer and two moose.
  • Under the All Writs Act, federal courts may order private parties to assist the execution of arrest warrants. In March 2020, a Forbes reporter came across an unsealed application by the DOJ for an order under the Act to compel one of the nation's largest online travel-booking companies to provide weekly reports to the FBI regarding potential travel by a person subject to an active warrant. The reporter writes an article about it, and files a motion seeking to unseal more information about it and similar applications. Ninth Circuit: Undoubtedly a matter of public interest, but the government has pretty good reasons for not wanting to unseal documents about ongoing criminal investigations involving unexecuted arrest warrants.
  • Defendants: We are cloaked in judicial immunity because as psychologists for the Parole Board, we are just like the members of the Parole Board, who are just like judges. Ninth Circuit: We think you're just, like, psychologists for the Parole Board. Immunity denied (though you might still have qualified immunity, which we leave for the district court).
  • Tulare County, Cal. woman with a history of abusing her husband and children has a mental-health crisis with apocalyptic visions. Her husband calls the police for help, and over the course of the day she and her infant twins are sent to three different places by three different police departments, culminating in being placed in a motel where she drowns the twins. Husband sues the police and governments involved for violating the Constitution's substantive due process guarantees. Ninth Circuit: Usually an official can't be sued for inaction, but an exception applies here because several of the defendants actively increased the risks facing the twins. Case can proceed. Dissent: This case is tragic, but the Fourteenth Amendment shouldn't be turned into a "font of tort law."
  • Two Yellowstone Park rangers receive alert that a park employee has spotted a fugitive wanted for allegedly murdering three women in Idaho. Rangers pull over the vehicle, hold the man (and a woman) at gunpoint, until they confirm that the man in fact is just a non-fugitive dude on vacation with his wife and their seven-year-old daughter. A Fourth Amendment violation? Tenth Circuit: Qualified immunity. The rangers thought the man was a suspect in a triple homicide, and their actions did not violate any clearly established law. (According to some cursory surfing of the World Wide Web, the actual fugitive is either dead or still on the loose.)

Nearly two years ago, the FBI seized Linda Martin's life savings—$40,200 that she kept in a safe-deposit box in Los Angeles. In that time, the feds have never said what law it thinks she violated. And when she followed the FBI's byzantine process for seeking the money's return, she unintentionally conceded that it was forfeitable—the very intentional result of the confusing language on the forfeiture notice. All of which violates the Constitution's guarantee of due process. Click here to learn more about Linda's suit.

In 2020, IJ client Robert Reeves sued Wayne County, Mich. officials who'd seized his car and refused to return it for over six months without giving him a hearing before a judge or any kind of process at all to challenge the seizure. Within days, the prosecutor's office retaliated against Robert, filing bogus felony criminal charges against him—charges that over the course of two years were thrown out for lack of evidence, and then re-filed, and then thrown out again. In the meantime, because of the charges Robert spent a weekend in a COVID-infested jail, was fired from a job as a FedEx driver, and wasn't permitted to leave the state. So this month Robert and IJ filed a second suit seeking to hold the prosecutor's office accountable under the Michigan and U.S. Constitutions for its transparent attempt to intimidate Robert into dropping the initial suit. Click here to learn more.