The Volokh Conspiracy

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


Short Circuit: A Roundup of Recent Federal Court Decisions

Scooter injuries, loyalty oaths, and Canadian barrels.


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

Debate! Tune in online on Monday, April 24 at 8pm Eastern to see IJ's own Anthony Sanders debate Prof. Kurt Lash on Baby Ninth Amendments?: State Constitutions & Unenumerated Rights. Hosted by the Federalist Society's student division and the Charleston School of Law's chapter. Click here to register.

  • Charlotte, N.C. police officer shouts at man, reported to be armed but not holding a weapon, to drop his gun. So he reaches for his gun and makes to drop it, at which point she shoots him dead. (His last words: "You told me to.") Fourth Circuit: No qualified immunity. Concurrence: I agree, but write separately to mention that getting rid of qualified immunity entirely would be "an incalculable social loss."
  • If you're a felon in possession of a firearm but you don't know you're a felon, are you really a felon in possession of a firearm? Fourth Circuit: Nope, not according to the Supreme Court. That means our friend the defendant should get his day in court—oh, but he's still got to show prejudice (or actual innocence) to win if he procedurally defaulted (even if the gov't forgot to bring up that little detail). Concurrence: Eh, mostly agree. But if the gov't didn't bring up an argument, that's their own fault, and we shouldn't help them out.
  • Fifth Circuit (sitting en banc): Recent years have seen a wave of litigation challenging state and local bail procedures. That wave includes this lawsuit, which the parties have been litigating for five years and which is, by the way, totally barred by Younger abstention. Sorry. Somebody probably should have said something to you guys sooner.
  • Sixth Circuit: Yes, these kids grew up without their dad because a Detroit police officer framed him for murder, leading to him spending 32 years in prison before he was exonerated. But there's no evidence the cop had it out for the kids personally, so their claim that the officer violated their Fourteenth Amendment right to familial integrity fails. Dissent: That's not the test; it's sufficient that the officer's conduct shocks the conscience. But also, the officer totally knew this guy had a family and what the consequences of the false conviction would be.
  • Ohio man is sentenced in 1991 for a murder he claims he didn't commit. In 2016, the Ohio Innocence Project takes an interest in his case and files multiple public-records requests for case documents. An assistant prosecutor turns over a heavily redacted file. Several months later, the city of Cleveland produces the unredacted file. Guess what the assistant prosecutor redacted: a bunch of exculpatory evidence that was never revealed to the man's defense attorneys! He is released, exonerated, and sues the assistant prosecutor. Sixth Circuit: The assistant prosecutor's claim that absolute prosecutorial immunity gets her off the hook is absurd. It's obviously qualified immunity that gets her off the hook.
  • Minnesota: Sure, our new law requires these plaintiffs to give away certain medications, but that doesn't mean they can enjoin the law as a taking. Who needs an injunction when they can just sue the state for compensation the first time they give a drug away, and then sue again the next time, and so on until the end of time? Eighth Circuit: Well, them. Maybe they need an injunction so they don't have to do that.
  • Two Canadians barrel down a Minnesota highway on a January night at 100 mph. A trooper pulls them over and finds a lot of other barrels: 67 guns and over a dozen high-powered magazines. Turns out they are unlawfully south of the border and one is wanted for murder north of the border. They're prosecuted for possessing firearms while being unlawfully present in the U.S. But wait, does this violate our "historical tradition of firearm regulation"? Eighth Circuit: Geez, hey, this is interesting history stuff you've found but unlawfully present Canadians aren't members of "the people" the Second Amendment protects anyway.
  • In your humble editors' opinion, one of the Supreme Court's finest moments came during World War II, when it held that the First Amendment forbade forcing Jehovah's Witnesses to say the Pledge of Allegiance. Justice Robert Jackson stirringly wrote: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein." Eight decades later, the California Controller's Office refuses to allow a Jehovah's Witness to make an addendum to her employment oath clarifying that her allegiance to California is not above her allegiance to God. Ninth Circuit: That seems like it violates federal and state anti-discrimination law, and it might violate the Free Exercise Clause, too.
  • Peru seeks to extradite its former president from California on bribery charges, and the U.S. State Department agrees he should be extradited. The former president seeks a stay while he litigates a habeas challenge to the extradition. Ninth Circuit: Peru's paperwork seems to satisfy its extradition treaty with the U.S. and there's evidence of probable cause for the prosecution. So the former president gets no stay and may not stay.
  • Man, a citizen of the Republic of Palau, legally enters the country but several years later "went on a one-man crime spree in which he attempted to rob a credit union, successfully robbed a coffee stand, and attempted to steal a car." This all added up to three convictions in Washington State for which he served 15 months. Was his second-degree robbery conviction an "aggravated felony" under federal immigration law, leading to his deportation? Ninth Circuit (en banc): Categorically yes under the categorical approach (mostly). Concurrence (One): Sure, but OMG WTF is with you guys? Concurrence (Two): I'm only joining some of the other opinions so I don't get fined. Dissent (One): The categorical approach is categorically bad. Dissent (Two): I just can't join this one bit of what one of the other judges wrote.
  • Echoing H.L.A. Hart's seminal 1958 article Positivism and the Separation of Law and Morals—which famously examined the process of interpreting a rule that forbids "vehicles" in a public park—the Eleventh Circuit explores whether an insurance policy that covers injuries caused by an "uninsured motor vehicle" is sufficiently broad to cover injuries caused by a collision with an electric scooter. It is, but whether this conclusion is an exercise in logic or raw judicial power will remain a question for the ages.

Victory! In August 2020, Jerry Johnson did something completely legal. He flew from Charlotte to Phoenix with $39,500 in cash to buy a used semi-truck. But Phoenix police seized the cash, and even though Jerry hired a lawyer, an Arizona court declared that Jerry had not shown he was an innocent owner—at a hearing that was supposed to be about whether Jerry simply owned the cash that was in his bags. But last year, IJ got that decision overturned, establishing precedent that it's not permissible to conflate standing and merits inquiries in civil forfeiture cases. And this week, we're happy to say that the state's case has been dismissed with prejudice. And lest anyone say the system works: an innocent man was without his cash—the entire operating capital for his small business—for 31 months and would never have been able to appeal without pro bono help. Click here to learn more.