The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

A kangaroo court, a diversified student body, and lying drug cops.


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

Neat! This week, Michigan's Supreme Court agreed to hear an IJ appeal on two crucial Fourth Amendment questions: Can the gov't fly a drone all around your property, without a warrant, to surveil you and your family? And assuming the Fourth Amendment prohibits that (it does), should the gov't still get to use what it gathered from its warrantless surveillance to punish you in court? (It should not.) Read all about it.

  • Maine law requires non-remote healthcare workers to be vaccinated against COVID-19 and has no religious exemption. Seven such workers lose their jobs after refusing vaccination for religious reasons. First Circuit: The case can go forward against the gov't because it's plausible the medical exemption that is in the law is comparable to the religious exemption the plaintiffs want—but we're going to suggest several ways the gov't can prove they're not comparable on a full record. Meanwhile, their claims against their former employers fail because it's an undue hardship to demand employers break the law and thereby risk fines and losing their licenses.
  • New York man is arrested and charged with both selling drugs and possession with intent to sell drugs. Convicted only of possession with intent, he sues the police, alleging that they violated his rights by lying about having witnessed him selling drugs. Second Circuit: That's a valid claim; police oughtn't do that sort of thing. Dissent: Where's the deprivation of his liberty interest? He went through all the same stuff—arrest, detention, prosecution—because of the possession charge he was convicted on.
  • If your life gets turned upside down for several years because an FBI agent accused you of being a Chinese spy based on information he knew (or should have known) was false, is that something you can sue over? District court: Nope. Third Circuit: In fact, the Federal Tort Claims Act provides a remedy, and the district court was wrong to import qualified immunity's "clearly established" test into the FTCA's "discretionary function" analysis (a ruling that this IJ amicus brief urged the court to make). J. Bibas, concurring: There is a circuit split on this and on some other important questions about the discretionary function exception that the Supreme Court might want to look into.
  • An executive at Flynn Intel Group, a consulting and lobbying firm co-founded by retired Lt. Gen. Michael T. Flynn is charged with acting covertly as an agent of Turkey in seeking to discredit the public image of a well-known Turkish dissident in the United States, with the ultimate goal of having the dissident extradited to Turkey. A jury convicts him, but the district court grants an acquittal or, conditionally, a new trial. Fourth Circuit (2021): Acquittal is going too far, district court, but he might be entitled to a new trial if you explain yourself better. Fourth Circuit (2023, over a dissent): You explained yourself better.
  • Allegation: The two largest inmate-calling-services providers colluded to fix prices and falsely told gov't agencies that the high prices were due to unavoidable transaction costs while pocketing the money. Fourth Circuit: Might be a RICO, and plaintiffs—who paid the inflated prices to call their loved ones—are victims enough to state a claim.
  • Alexandria, Va. high school that is consistently ranked as one of the best public high schools in the country requires students to apply for admission and take rigorous entry exams, and is extremely hard to get into. To diversify the student body, the school ditches standardized tests, and the percentage of Asian American students admitted drops dramatically. A coalition of parents sue, alleging the new admissions procedures were enacted with racially discriminatory intent. Fourth Circuit: The policy is racially neutral and fine. Dissent: The policy was enacted to decrease Asian American enrollment; it's unconstitutional.
  • Houston narcotics officer obtains a no-knock warrant by lying about a heroin sale at a home. Officers raid the home and kill a husband and wife and their dog. Four officers are seriously injured. No heroin is found. Fifth Circuit: The allegation that officers shot first and without provocation gets plaintiffs' excessive force claim past qualified immunity. Dissent: But a supervisor should be off the hook because there is no prior case clearly establishing that a supervisor can be held liable if they know an officer has a habit of lying on search warrant affidavits and don't do anything about it. (This has been in the news.)
  • Homeowners aggrieved by Shelby County, Tenn.'s Environmental (Kangaroo) Court sue in federal court, alleging the Environmental Court's procedures violate due process. The district court dismisses, applying the Rooker-Feldman doctrine. Sixth Circuit: For the love of God and all that is holy, stop applying the Rooker-Feldman doctrine to every case you want off your docket. Case un-dismissed. (This is an IJ case.)
  • Sterling Heights, Mich. officer tackles teen, pushes his head into the pavement, and then arrests him after he declined to show ID with sufficient alacrity. Qualified immunity? Sixth Circuit (unpublished): Depends on whether there was probable cause to suspect the teen, who was waiting for his dad to pick him up on a dark and stormy night near a sandwich shop where he had just finished work, was doing something unlawful. To a jury this must go.
  • Police in Peoria, Ill. respond to gunfire and find a man shot in the face. Somehow, his day is about to get even worse. Using his key fob, the police identify his car nearby and discover a gun in it. He's a felon and is charged with illegally possessing the gun. He says the gun should be suppressed because using the fob was an illegal search. Will this Fourth Amendment argument play in Peoria? Seventh Circuit: We don't have to decide because the police got a search warrant without mentioning the fob and would have found the gun anyway, based on such other subtle clues as bullet holes and blood in the car, and the gun barrel being visible through the window.
  • Following a 1985 plane crash, a victim's widow receives a payout from the airline and sets aside $200k for her son's benefit into an account with her new husband as the custodian. They divorce in 1999. The son claims that his now-former step-dad never said anything about the money, and it's all gone now. Eleventh Circuit (after certification to the Georgia Supreme Court): A jury might just find that the then-step-dad had a duty to disclose the account when there was still money in it and the son had the right to take control of it. (Meanwhile, the son's mom is in prison for defrauding Dennis Rodman and other pro athletes.)
  • Allegation: Georgia inmate does not receive his daily anti-seizure medication for four days, suffers two seizures and brain damage. Nurses: The guards didn't tell us! Guards: We wrote it down! Eleventh Circuit: No need for all this finger-pointing; nobody acted with more than gross negligence. (And prior panels that applied a more-than-mere-negligence standard were wrong.) Concurrence: I'm with Judge Friendly and Judge Posner. The Eighth Amendment doesn't protect inmates against prison officials' negligence, even if it's beyond gross.
  • And in en banc news, by a vote of 7 to 7 and over two dissentals, the Fourth Circuit will not reconsider its decision affirming a sentencing enhancement against a man who led police on a high-speed chase and was later found in possession of a firearm. Though prosecutors changed their theory of which crime the firearm "facilitated" at the sentencing phase of his trial, the panel found the error harmless.
  • And in more en banc news, the Ninth Circuit will not reconsider its decision that a California law that prohibits honking a vehicle horn except when necessary to warn of a safety hazard does not violate the First Amendment by outlawing honking to support political protests.

A hearty three cheers for the state of Minnesota, which this week repealed laws prohibiting the sale of gas and dairy at prices below a state-mandated floor. "Minimum markup laws are the result of outsized influence from special interests with a direct stake in keeping higher prices in place," says Meagan Forbes, IJ's Director of Legislation and Senior Legislative Counsel, who testified in favor of the repeal. "These laws protect individual competitors, not competition, and discourage pro-competitive price-cutting." Click here to learn more.