The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: Section 2 of the 14th Amendment punishes states that abridge the right to vote by taking away their seats in the U.S. House of Representatives. Or at least that's what the Amendment was supposed to do, but the Census Bureau has never gotten around to doing its constitutional duty. So says special guest Jared Pettinato.
- Purdue Pharma L.P. and its owners, the Sackler family, made a mint selling OxyContin as a non-addictive pain reliever. When it turned out to be highly addictive, Purdue and the Sacklers faced an avalanche of lawsuits with claims estimated at more than $40 tril. Purdue declared bankruptcy. Following mediation, the bankruptcy court approved a plan in which the Sacklers would contribute $5.5-6 bil to the bankruptcy estate in exchange for release from liability to nonconsenting third parties, but the district court rejected the plan as not authorized by the Bankruptcy Code. Second Circuit: We think it's fine. Concurrence: Well, we've held that this sort of release from liability is fine, but pointing to anything in the Bankruptcy Code that authorizes it is another matter.
- Virginia Tech has a Bias Intervention and Response Team (BIRT) policy that encourages students to narc on any "expressions against a person or group because of the person's or group's age, color, disability, gender (including pregnancy), gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law." Speech First, a nonprofit that promotes student rights, challenges the policy as a violation of the First Amendment and seeks a preliminary injunction, which the district court denies. Fourth Circuit: Since the BIRT has no disciplinary power and can, at most, invite complained-against students to participate in a voluntary conversation with the complaining student, there's no injury. Dissent: "Does the majority really believe this invite is no different from students inviting one another to drop by down the hall for a Friday night pizza? No!"
- In 1991, a woman and her 13-year-old daughter are found raped and murdered in their Durham, N.C. apartment. A man is convicted solely on the basis of contradictory eyewitness testimony (at the hands of since-disbarred prosecutor Michael Nifong) and spends 21 years in prison—until DNA exonerates him and he's released. He sues, and a jury awards him $6 mil against one of the police officers. Fourth Circuit: Sounds right, though (over a partial dissent) a jury should consider whether two more officers should be liable for their role in suppressing a 2011 interview of the DNA match.
- After woman is accused of egging her neighbors' car (one of many such incidents of feuding between the two families), Harris County, Tex. officers allegedly enter her home without consent and push her into a chair while handcuffing her, causing bruising. They issue her a citation and leave. Fifth Circuit: Could be an unlawful entry or illegal search or excessive force. No QI. Partial dissent: No way that a little bruising during cuffing is excessive force; the "majority mocks the law of QI." And does so in an unpublished per curiam opinion two years after oral argument!
- During public meeting (on Zoom), a resident criticizes Grand Traverse County, Mich. commissioners for endorsing the Proud Boys and asks them to disavow political violence. Instead, one of them displays a high-powered rifle and smirks. Sixth Circuit: No qualified immunity. Dissent: "The question … is not whether [the resident] had a clearly established right to be free from retaliation for exercising her First Amendment rights; it is whether she had a clearly established right to be free from the display of a rifle (or equivalent actions) during a virtual Board of Commissioners meeting."
- A week after being sworn in, Starke County, Ind. councilman attends a state conference where he allegedly says that he was an active member of the Aryan Brotherhood and, using vulgar epithets, described racial and religious groups that he wished to expel from the county. The County Council quickly expels him, and he sues. Indiana Court of Appeals: If we can't make sense of your arguments, you lose. Seventh Circuit (unpublished): If you lose in state court, you can't litigate the claim in federal court.
- In 2018, a duck boat capsizes on a lake in the Ozarks, killing 17 people. The feds charge the captain and managers with seaman's manslaughter, but the district court dismisses the indictment: Because the lake isn't used for commercial shipping, the feds lack admiralty jurisdiction. Eighth Circuit: That's so until Congress says otherwise, which it hasn't. Moreover, the indictment doesn't say anything about interstate commerce, so it's too late to argue the Commerce Clause permits the prosecution. Dissent: Commerce is everywhere.
- Man convicted of being a felon in possession of a firearm and sentenced to nine years in prison: My prior offenses don't indicate that I am any more dangerous than the average law-abiding citizen. The felon-in-possession ban violates the Second Amendment as applied to me. Eighth Circuit: Nope, there's no need for an individualized determination of dangerousness.
- Chino Hills, Calif. woman, who stopped taking her schizophrenia medication due to her pregnancy, suffers mental breakdown leading to her arrest. She's taken to the county jail and placed in a safe room. Nonetheless, she attempts suicide, leading to her and her baby's deaths. Ninth Circuit (unpublished): Her claims against the county and the officers responsible for her care should not have been dismissed.
- California prosecutor to star witness: You are aware that under California law, if you perjure yourself to procure a death sentence for the defendant, you yourself may be subject to the death penalty. Star witness: I am. Prosecutor: [Proceeds to knowingly elicit perjured testimony, which leads the jury to find special circumstances warrant the death penalty.] Ninth Circuit: And he oughtn't have done that, so we grant habeas as to the special circumstances findings and imposition of the death penalty—a mere 32 years after they were entered.
- Man drives his blindfolded wife to a surprise anniversary dinner. Yikes! A 911 caller reports a possible abduction. Fountain Valley, Calif. police head to the man's home and encounter his mother, father, brother, and daughters, ultimately resulting in grandpa being taken to ground. Ninth Circuit: The law protects good-faith efforts to investigate a potential kidnapping. Partial dissent: Could have been an unlawful seizure.
- In a putative derivative action, plaintiff alleges that The Gap misled shareholders about its commitment to diversity (in violation of the Securities Exchange Act of 1934). And the Ninth Circuit (sitting en banc and creating a circuit split) holds that the company's forum-selection bylaws … well, anyway, the suit is dismissed. The five-judge dissent, meanwhile, says companies can now ensure that such actions can only be brought in state court, which do not have jurisdiction to hear them, a "litigation bridge to nowhere."
- Allegation: At the behest of a neighborhood busybody, Dekalb County, Ga. officials shut down an Ethiopian restaurant for code violations (even after extensive efforts to come into compliance)—part of a pattern of selective enforcement against Black-owned-and-patronized establishments. District court: Whoa, no qualified immunity. Eleventh Circuit (unpublished): In fact, it's not clearly established that corporations can suffer racial discrimination as they don't, strictly speaking, have a "race." So qualified immunity for the officials. The restaurant's case against the county can proceed, however.
- And in en banc news, the Ninth Circuit will not reconsider its decision that federal courts lack jurisdiction to review the Attorney General's discretionary decision that a particular noncitizen in immigration detention poses a danger to the community and so is not entitled to release on bond. Eleven (!) judges dissent from denial, and if that ain't proof that the Ninth Circuit is too big, nothing is.
Victory! In 2016, Georgia legislators passed a law requiring lactation care providers to obtain the equivalent of a college degree. The law would have created an instant shortage of services (particularly in rural, low-income, and minority communities) and provided a windfall to the small subset of providers who lobbied for it. But this week, in a unanimous opinion, the Georgia Supreme Court ruled that the law violates the state constitution's protections of the right to pursue a lawful occupation. Henceforth, in the face of substantial evidence that a service is safe and beneficial, officials will have to offer more than "speculation" to the contrary if they want to outlaw it. Click here to read more.