The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Deposition misconduct, grumpy interrogatories, and protesting the Lawyers' Mall.


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

Hey, look at that! SCOTUSblog's "Petition of the Week" is none other than IJ's cert petition in Gonzalez v. Trevino, a retaliatory arrest case that—so far—illustrates just how easy it is for officials to escape liability for throwing someone in jail for criticizing them. Many thanks to our amici who filed seven briefs in support of truth and justice.

  • In 2021, the Federal Election Commission dismissed a complaint that alleged Donald Trump had impermissibly solicited "soft money" contributions to a super PAC. After the complainant sued to challenge the dismissal, two of the commissioners issued a statement that they declined to pursue the case in an exercise of prosecutorial discretion. District court: Well, that's that. The complainant loses. D.C. Circuit: Wrong! The commissioners had to issue the statement before the lawsuit. The case is remanded to the FEC so they can issue a second statement invoking prosecutorial discretion. Then the complainant loses.
  • Man who taught at D.C. charter school pleads guilty to sexually abusing a student from 2004 to 2009. The victim then sues the school, among others, but the one-year statute of limitations has long since run. In 2019, however, a new law revives time-barred claims. District court: But there's no reviving claims that have already been adjudicated and dismissed. D.C. Circuit: But here they were dismissed without prejudice. Reversed and remanded. [Bonus vocab quiz from Judge Friendly: tergiversation.]
  • Pro golfer walking in a midtown Manhattan crosswalk trips in a pothole next to a gas cap, permanently injuring himself and compromising his golf career. He and his wife sue the utility company and settle for $2.5 mil. A month later, they sue New York City. District court: Nope, you can't say the gas cap caused the fall in one suit and then turn around and sue over the pothole. Second Circuit (unpublished): Vacated! Their case against the utility was settled, which means no assuming the two claims are inconsistent (in the absence of a judicial endorsement of the first suit's claims).
  • Police officer asks gun-rights protestors picketing outside the Maryland State House in Annapolis to move a few feet back onto a grassy square called the "Lawyers' Mall" to clear the sidewalk and roadway. They refuse, are arrested, and then sue for violation of their First and Fourth Amendment rights. While one can perhaps understand not wanting to be in a place associated with lawyers, the Fourth Circuit says the officer's request was quite reasonable—certainly enough for qualified immunity. Also, the court is rather perturbed by the recent trend of rabblerousers from across the political spectrum disrupting legislative proceedings.
  • "We have always protected the Americans; we may, therefore, subject them to government." Or so claimed Dr. Johnson on the eve of the American Revolution. Later those Americans wrote a Constitution which used—among others—four words to define Congress's powers over the militia: organizing, arming, disciplining, and governing. If you're a Dr. Johnson connoisseur, you'll love the Fifth Circuit's attempt to subject those words to analysis, liberally drawing from his Dictionary of the English Language. It concludes the President likely has no power to punish Texas national guardsmen for not taking the COVID-19 vaccine because they were never federalized during the relevant period.
  • Detainee at Lamb County, Tex. jail alleges he was not given water for three days and had to drink out of the toilet. Fifth Circuit (unpublished): Undismissed!
  • DEA officer runs a team that turns out to be really good at disrupting the drug supply chain in New Orleans but not so good at turning in all the cash and property they seize from suspects, which they start pocketing for themselves. After stealing tens of thousands of dollars, forcing an informant to buy him a new truck, and suborning perjury, the officer is arrested, convicted, and sentenced to 160 months in prison. Fifth Circuit: And we affirm every aspect of that.
  • Family members of individuals killed by guns that had been listed on the online firearms marketplace sue, alleging that the website was negligently designed to encourage and assist firearms buyers and sellers in circumventing federal and state law. Are the negligence claims barred by Section 230 of the Communications Decency Act? Seventh Circuit: No need to answer that question, because plaintiffs haven't adequately pleaded a claim for negligence.
  • Police in Arkansas stop car, find $34,918, hand it over to the feds. Feds sue to forfeit it. Car's driver appears and explains that the money was for a trip to Las Vegas. Gov't: In that case, please answer these "special interrogatories" about your bank records, driver's license, and other things. Man: Grumble grumble ::offers a mélange of objections and inadequate answers::. District court: The sanction for failing to comply with Rule G(6) (dealing with special interrogatories) is that your claim to the money is stricken. Eighth Circuit: Well, the guy certainly seems to have thought he complied with Rule G(6) since he answered some of the questions and objected to others. And the district court never actually ordered him to respond to the ones he didn't answer. So his claim to the money can proceed—for now.
  • Eighth Circuit: Since we decided a few days ago that permanently denying non-violent felons from owning firearms doesn't violate the Second Amendment we're going to say the same for this defendant. Dissent: I disagree but "[m]ore to come."
  • Idaho guy sells cocaine from his house to confidential informant. Subsequent search turns up more cocaine and a dozen rifles. Is his enhanced sentence for possessing guns while selling drugs a Second Amendment violation? Ninth Circuit: Using the Bruen standard we ask if there a historical analogue to this law. And we find there is because selling drugs while possessing a gun is a lot like burglary or robbery.
  • In Bostock v. Clayton County (2020), the Supreme Court held that Title VII's prohibition on sex-based discrimination in employment includes perceived sexual-orientation discrimination. Does the same hold true for Title IX's prohibition on sex-based discrimination in education? Ninth Circuit: Sure does. So a lawsuit against the University of Arizona, brought by a former student athlete who alleges he was subjected to frequent "sexual and homophobic bullying" by his teammates, is undismissed.
  • Medical-debt collectors sue to challenge Nevada law that requires them to provide written notification to debtors 60 days before taking any action to collect a medical debt. "Who could possibly know what it means to take an 'action to collect a medical debt'?" they cry. "The law is unconstitutionally vague!" Ninth Circuit: Seems pretty straightforward to us. Dissent: It seems straightforwardly preempted by the Fair Credit Reporting Act and the Fair Debt Collection Practices Act to me.
  • "The CFPB's problematic conduct began during discovery," recounts the Eleventh Circuit, in this barn-burner of an opinion affirming dismissal of an agency enforcement action as a sanction for bonkers—truly bonkers—discovery misconduct, including objecting to obviously unobjectionable questions at deposition and having an agency witness read for an hour from a "memory aid" in response to a single deposition question.

Friends, if you get pulled over and you seem suspicious, the police may search your car. So what do police say makes a person suspicious? Quite a bit: It's suspicious if you act too nervous. 612 F.3d 341. Or too calm. 551 F.2d 991. It's suspicious if you make too much eye contact. 622 F.2d 1218. Or too little. 799 F.2d 704. It's suspicious if you travel with luggage. 625 F.2d 9. Or without. 555 F.2d 594. It's suspicious if you walk with too much purpose. 912 F.2d 1014. Or too little. 908 F.2d 497. It's suspicious if you take a one-way trip. 878 F.2d 469. Or a round-trip. 555 F.2d 594. It's suspicious if you travel with others. 799 F.2d 704. Or if you travel alone. 890 F.2d 1413. Which is all deeply silly and un-American, and at IJ we're doing something about it (other than tweeting viral tweets). Click here to learn more.