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.
Amy Crevola of Corvallis, Oregon, operates a free pantry out of her carport, where she provides clothes, hygiene products, household goods, baby items, and food to those in need. But after the city received a complaint, it sent Amy a letter demanding she comply with the city's home-business ordinance and convert her carport into a garage. But Amy isn't running a business—she's helping those in need, and she has a right to do so. So this week IJ urged the city to take another look at that policy. Learn more here.
- After living in the U.S. for 20 years, marrying a citizen, and fathering an American citizen daughter, Guatemalan man who entered the country illegally at age 14 tries to regularize his status. His visa is denied because he supposedly has connections to a criminal organization even though his record is clean. He seeks judicial review. D.C. Circuit: "Though marriage is a fundamental right, it does not include the right to live in America with one's spouse," and anyway it's enough that the government cited a statute as a basis to deny your visa. Concurrence: That marriage holding seems wrong, but giving a one-sentence justification for the visa decision is sufficient.
- D.C. Circuit: Presidents almost always get to fire executive officials, and that's true for members of the Council of the Administrative Conference of the United States. (Fed courts aficionados may be more interested in the court's holding that the plaintiff has standing because, although courts can't enjoin the president to re-appoint somebody, they can order the president's subordinates to act as if he had re-appointed them.) Concurrence: One of these days we should resolve what, if anything, is left of Humphrey's Executor v. United States (1935), which until recently limited this sort of thing.
- What happens if a DEA agent has ample evidence of probable cause to search a car, but the New Hampshire police officer whom the DEA agent directs to actually do the search doesn't have that evidence? First Circuit: That's OK, no Fourth Amendment problem.
- Kannapolis, N.C. police respond to a call from a bank, concerned about a white windowless van that had been parked overnight in their lot. When police arrive, they notice legal firearms and explosives, as well as a suitcase in the front seat. Worried that someone may be living in the rapidly heating van, they open it up and discover a half million in cash, more guns, books on making bombs, and drawings of planes crashing into buildings. It turns out the owner was plotting to kill Joe Biden. When the owner shows up, he's arrested and a search of his phone turns up child pornography, for which he is charged and convicted. Fourth Circuit: Nobody wants unsecured firearms and explosives just sitting around. The search was reasonable.
- And now a case on a topic near and dear to the litigators out there: discovery abuse. Namely, dragging out discovery for two years with incomplete and false discovery responses, here to conceal a web of corporate alter egos in a fraudulent telemarketing scheme. District Court: After many, many forgone opportunities to behave, the appropriate sanction is default judgment for the plaintiff to the tune of $828k. Fourth Circuit: Today we're going to talk about how we can find out, and how much we can find out, and what it takes to get there.
- This is a sadly typical deliberate-indifference case from the Fifth Circuit. It features an exploding toe.
- The Fifth Circuit reminds us that restrictions on electioneering just have to be reasonable. And a woman wearing a "Houston Fire Fighters" T-shirt to the polls? When there was a ballot proposition about increasing firefighter pay? Democracy can only withstand so much.
- In his 1830 sonnet "The Kraken," Tennyson wrote "Once by man and angels to be seen, / In roaring he shall rise and on the surface die." He was describing one of Sidney Powell's frivolous election-fraud lawsuits and the Sixth Circuit's affirmance (in part) of sanctions.
- CERCLA, the well-known federal environmental law, requires an energy company to clean up waste from its refineries. But isn't that really Uncle Sam's job, asks the company, since the government was super-involved in oil-and-gas production during World War II? Sixth Circuit: No.
- Can a sex-offender subject to lifetime electronic monitoring challenge his conviction when he's already served his sentence and finished parole? Sixth Circuit: Well, you need to be in custody to seek a writ of habeas corpus, and monitoring isn't really custody, so no. Dissent: He may not be in prison, but "[l]ifetime electronic monitoring ensures that [his] every movement will be tracked by the state for the rest of his life; that he cannot participate in certain employment or recreational activities; that the state can demand his immediate physical presence at any time; and that one month out of every year of his life will be spent physically tethered to an electrical outlet, charging his monitoring device."
- Lansing, Mich. cop sees man passed out at the wheel of a running car early in the morning after a blizzard. Without knocking opens the driver's door to check. Man wakes up. Cop asks for ID. Things escalate quickly and cop finds a whole lot of bags of drugs and a gun. Man: Unreasonable search and the community caretaker exception does not apply. Sixth Circuit: Here's our chance to detail the long history of police doing stuff other than crime control, going back to 1285. But, yeah, the cop could have just knocked. Evidence suppressed.
- Plaintiff prisoners are members of Christian Identity, an "explicitly racist" faith. Michigan Dept. of Corrections: We're not going to let you register as a religion. Sixth Circuit (2020): Maybe, but the department has to satisfy strict scrutiny. District court: Which it does. Sixth Circuit (2023): What part of "strict" scrutiny do you not understand?
- Allegation: 15-year-old kid is detained in a privately run juvenile hall. During a 45-minute period in which no staffer saw him—and which violated a contractual requirement with the state to perform "eye-on checks" every 15 minutes—he takes his life. Turns out such violations were not uncommon at the facility. Juvenile hall: We're not a state actor. District court: I agree, case dismissed. Sixth Circuit: Tell that to the Reconstruction Congress. Reversed and remanded.
- Is Bivens dead and, along with it, hope for holding federal officials accountable to the Constitution? Seventh Circuit: No. Not entirely! Even if we cabin Bivens to its specific facts, this case—in which a plaintiff is suing a narcotics officer for Fourth Amendment violations stemming from a warrantless search, arrest, and unreasonable use of force—is basically identical to Bivens.
- "Basic grammar tells us what the sentence means." When a court starts an analysis like that you can be sure not everyone will agree on the basic grammar. So it is in this Eighth Circuit case about whether a guy in prison "directed violence" upon another guy—who sold drugs for the guy in prison—by passing the latter's address to some unsavory characters and followed up with a text stating "am about to [tell] them that [you] don't want to pay and . . . whatever they do after that is on you." Concurrence: Basic grammar moves me to say that instead of directing violence he made a credible threat to use violence, also a no-no in the same sentence. Dissent: Basic grammar demonstrates you're both wrong.
- Gilbert, Ariz.: A group of unidentified men point guns at a man and yank him from his car without warning. It turns out they're cops. Unreasonable seizure? Ninth Circuit: Thanks to qualified immunity, we don't have to say. But we really need you to know that we think the plaintiff was being suspicious. Dissent: My colleagues are not viewing the facts in the light most favorable to the plaintiff.
- An alien is not admissible to the United States if he has previously lied about his citizenship status to obtain some benefit under federal or state law, but, says the Ninth Circuit, lying about your citizenship to avoid deportation proceedings isn't an attempt to obtain a benefit. It's just plain-old lying, which is totally different.
- Did it violate the Equal Protection Clause for a county's emergency COVID-19 order to shut down recreational air travel but not non-recreational air travel? No, says the Ninth Circuit, because those different things differ from each other.
- Does an Idaho court have personal jurisdiction over an English company in a case about a plane crash in Indiana that killed someone from Louisiana? Ninth Circuit (over a dissent): That sentence would need at least a couple more "Idahos" in it to create jurisdiction. Case dismissed!
- Under the Federal Tort Claims Act, an officer who "execute[s] searches" is a law enforcement officer and can be sued for assault; TSA agents execute searches (that's kind of their whole thing); therefore, TSA agents can be sued for assault. Logic, right? District Court: Actually, TSA agents are not law enforcement officers because they do not execute searches because searches can only be executed by law enforcement officers. That's logic. Ninth Circuit: We prefer the plaintiff's syllogism. TSA agents do execute searches. So, you can sue them. (IJ filed a brief in the case and argued before the Ninth Circuit as a friend of the court.)
- In McGirt v. Oklahoma (2020), the U.S. Supreme Court threw out the 1997 conviction of Jimcy McGirt for sexual abuse on the grounds that, as an enrolled member of the Seminole Nation on Native American lands, McGirt's crime could only be tried in tribal or federal court, not state court. Federal prosecutors immediately brought the case to a grand jury, which indicted McGirt, and he was again convicted of sexual abuse based on the same allegations. Tenth Circuit: But the trial court screwed up the jury instructions, allowing them to consider prior inconsistent witness statements only for impeachment and not as substantive evidence. He gets a new trial.
- In a post-McGirt case with facts that are way less icky, a member of the Choctaw Nation files a lawsuit in federal court seeking post-conviction relief against a $150 speeding ticket issued by the City of Tulsa. Tenth Circuit: And his argument is stronger than you might think, but federal district courts don't have appellate jurisdiction over state-court judgments, so case dismissed.
- You don't see many plain-error rulings that invalidate triple life sentences, but the Tenth Circuit takes the opportunity to remind us that you really super-duper can't have one witness testify that she believes other witnesses are telling the truth.
- In which the Federal Circuit clarifies that when it previously said there is an exception to the Takings Clause for exercises of the police power it didn't mean, like, always.
- And in en banc news, the Fifth Circuit will reconsider its previous ruling that a white public-school student failed to sufficiently allege race-based harassment by claiming (among other things) that a teacher told him his Halloween candy "would be filled with hate and oppression."
If police seize your property through civil forfeiture, it may be months or years before you get a hearing in front of a judge to challenge that seizure. The result is that many property owners simply give up or are forced into unfair settlement agreements to get back just a fraction of their property. This week, IJ filed an amicus brief in a case before the U.S. Supreme Court urging the court to rule that forfeiture victims have a right to a prompt hearing after police seize their property. Check it out!