The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Sidewalks to nowhere, vitriolic deliberations, and precedential nonprecedents.


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

Friends, if you live in the DC area and want to learn more about "Baby Ninth Amendments," meet the author of a new book with that title, and grab some free apps and drinks, then register here to meet us at The Admiral in Dupont Circle on Thursday, May 25 for a festive happy hour full of unenumerated rights.

  • In 2002, 15-year-old Canadian citizen Ahmed Khadr joins an al Qaeda cell in Afghanistan and shortly thereafter ends up in Gitmo. In 2007, he's charged with various crimes and strikes a deal to serve only eight years and be transferred to Canadian custody in exchange for pleading guilty and waiving his appeal rights. Now a free man in Canada, Khadr files a petition with the Court of Military Commission Review, trying to have his conviction set aside. D.C. Circuit: We are an appellate court, and Khadr notably waived his appellate rights. Dissent: We shouldn't even be saying that much, because we don't have jurisdiction.
  • Nearly all of the Varsity Blues defendants pleaded out. (As expected.) Two of those who didn't went to trial and were convicted of honest services fraud (by using payments to deprive the universities of the honest services of their employees) and property fraud (by depriving the universities of property in the form of "admissions slots"). First Circuit: Vacated. No honest services fraud because the payments to the universities—the purported victims here—weren't bribes. And the gov't's property theory, which would criminalize embellishing a kindergarten application, is too broad. (But one defendant who deducted the donations sees his false-tax-return conviction affirmed.)
  • The world (or at least our world) is moderately astir about footnote four of this Second Circuit decision, which could be read to suggest that non-precedential circuit-court decisions are, well, kinda precedential. Which, when you think about it, makes some sense.
  • Every lawyer your editors have ever met is like, "Oh boy, I'd love to serve on a jury someday so I can see what it's like," but, per the Third Circuit, maybe be careful what you wish for. In related news, no new trial for this racist Bordentown, N.J. cop who was convicted of making false statements to the FBI following jury deliberations allegedly marked by "racial vitriol, intimidation, and other misconduct."
  • Allegation: Texas inmate goes to the prison clinic at 10:45 a.m. complaining of symptoms including difficulty swallowing. He is dismissed as "faking" but returns three hours later complaining of worsening symptoms, including a stiffening face, weakness, and disorientation. He receives no treatment and is threatened with discipline. EMTs (called by the inmate's sister) arrive at 8:40 p.m. and determine that he requires hospitalization, but it's not until 10:50 p.m. that he's taken to a hospital, where he is diagnosed as having suffered a brainstem stroke. He sues, alleging the 12-hour delay in treatment resulted in numerous avoidable stroke complications. Fifth Circuit: The Constitution protects prisoners from deliberate indifference to serious medical needs, but this was merely the negligent indifference to human suffering that typifies incarceration.
  • In 2016, Mississippi state legislators abolished the Jackson Municipal Airport Authority, whose leadership had been appointed by Jackson city officials, and replaced it with a regional authority, whose leadership is mostly not. Racial discrimination? Fifth Circuit: The state-legislator defendants need to explain why the documents plaintiffs seek are protected by legislative privilege. Dissent: Federal courts ought to be more averse to meddling in intrastate political squabbles like this one.
  • In which a San Antonio man, during a traffic stop outside his mother's house, throws his jacket onto a garbage can on her property. Police grab the jacket and find a gun inside. Felon in possession? Suppress the evidence? Fifth Circuit: Tossing an item onto property you often visit isn't abandonment, so the cops couldn't just search the jacket willy-nilly. Conviction vacated. Dissent: Anyone could've taken that jacket.
  • Nashville: Sure, the Supreme Court has held that it can violate the Takings Clause when an administrative agency demands that a landowner turn over an easement for something like a sidewalk, but here it's not an agency doing it to one guy. It's the legislature doing it to everybody all the time. Sixth Circuit: That's . . . not better. Why would that be better?
  • White supremacists travel across state lines to bomb a Bloomington, Minn. mosque. (Displaying the incompetence often associated with white supremacists, they do a rather poor job of it.) They're convicted of things like "intentionally damaging religious property" and "using a destructive device during a crime of violence." The white supremacists: Those are purely local crimes. The feds don't have authority to prosecute. Eighth Circuit: Actually, the Commerce Clause covers everything, so conviction affirmed. (And it really doesn't matter that the FBI listened to some attorney-client phone calls.)
  • If you're inclined to take the advice of rapper Ludacris and "roll to [landmark Los Angeles restaurant chain] Roscoe's [House of Chicken & Waffles] and grab somethin' to eat," your editors recommend the #9. But if you're an unsecured creditor of the famous soul-food restaurant, don't bother complaining about the fees paid to the trustee overseeing its Chapter 11 bankruptcy plan. Per the Ninth Circuit, you don't have standing.
  • Last year both the Michigan Supreme Court and the Nevada Supreme Court ruled that their states' constitutions provide implied causes of action against government officials who violate state constitutional rights. This rejected the U.S. Supreme Court's erosion of similar causes of action under the U.S. Constitution, perhaps signaling a federalism backlash and a trend in state courts in a more rights-friendly direction. And then last week the Iowa Supreme Court said: Trend, what trend? This wrongfully arrested truck driver can go fly a kite, but he's not gonna sue for damages under the Iowa Constitution.

And now for some good news: Following unanimous votes in the house and senate, South Carolina's Earn and Learn Act was signed into law this very week. The legislation removes unnecessary barriers that prevented ex-offenders from obtaining occupational licenses, for instance, barring state boards from denying otherwise-qualified applicants based on vague and arbitrary standards like "good moral character" and "moral turpitude." "Research shows that a job is one of the best ways to reduce recidivism," said Meagan Forbes, IJ Director of Legislation and Senior Legislative Counsel. "This bill will remove arbitrary licensing barriers that unfairly prevent people with criminal records from accessing jobs and seeking a fresh start." Click here to learn more.