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: No judicial immunity for personally locking up some kids and no community caretaking exception for a cop on the beat.
- House of Representatives (Jan. 2021): Due to the COVID-19 pandemic all members gotta wear masks. If you don't it's $500. Three members: That violates these five constitutional provisions. D.C. Circuit: Ah, but since the House was acting in its legislative capacity those don't matter because of the One Clause to Rule Them All, the Speech or Debate Clause. Legislative immunity and case dismissed.
- In 2021, the feds and the state of Florida allowed the Seminole Tribe to offer online sports betting—indeed, the tribe obtained the exclusive right to offer online sports betting, even by people not physically on tribal land, while sports betting remained illegal in the rest of the state. Brick-and-mortar casinos objected, arguing that this impermissibly allowed gaming outside of Indian lands. D.C. Circuit: Some of this might violate state law, but we're not touching that. The feds' involvement in the agreement satisfies the APA.
- NC State University professor rankles his colleagues by, among other things, criticizing a proposal to add a question about diversity to student course evaluations and writing a blog post declaring that the "[Association for the Study of Higher Education] Has Become a Woke Joke." His department responds by removing him from his program area and basically making it impossible for him to advise graduate students. He sues for First Amendment retaliation. Fourth Circuit: Sounds like he should have been more collegial. Dissent: "My friends in the majority . . . have developed a new 'bad man' theory of the law: identify the bad man; he loses."
- How do you spell a challenge to a Navy COVID-19 vaccine mandate that, pursuant to orders from Congress, has been rescinded and where the Navy has, in addition, removed all prior adverse actions associated with denials of religious exemptions? Fifth Circuit: M-O-O-T. Concurrence: But I would also spell M-U-N-S-I-N-G-W-E-A-R. Dissent: Perhaps it's true of Caesar's wife, but the Navy is not above suspicion.
- Allegation: After Montgomery County, Ky. officials are ordered to obtain exculpatory evidence from a witness and turn it over to the defense, a prosecutor instead tells the witness to destroy the evidence. (She does.) Sixth Circuit: That is "seemingly unbecoming" but nevertheless within the prosecutor's traditional role as an advocate. Absolute immunity. Concurrence: No, no, prosecutors don't have discretion to disregard a court order. We should have granted qualified immunity.
- Seventeen-year-old student is required to participate in police ride-along for a class, and the Hammond, Ind. officer she shadows spends the day groping her, making lewd remarks, and even taking her to a remote location where he offers her to another officer for sex. Officer: This mere "boorish flirtation" was just "making for an exciting ride along." District court: Qualified immunity. Seventh Circuit: Reversed. "Sexual assault is an intentional act that never serves a legitimate governmental purpose."
- Oregon law makes it a crime to surreptitiously record conversations with another person without their knowledge . . . unless you're a cop performing official duties, in which case, record away! Project Veritas—which has something of a history of secretly recording conversations—challenges the recording ban as a violation of the First Amendment. Ninth Circuit: And they're right. The ban is unconstitutional. Dissent: We should just sever the exceptions for law enforcement and then the ban is fine.
- It is obviously unreasonable for an off-duty, out-of-uniform police officer to lose his temper on the road, follow another motorist home, box him in his driveway, scream profanities, and point a gun at him when the other motorist is nonthreatening. So says the Tenth Circuit, reversing a grant of qualified immunity to a (now-former) Chaves County, N.M. sheriff's deputy. Claims against the county, which hired him in spite of his history of volatile behavior, are on the table, too. (This is an IJ case.)
- If you want to proceed anonymously in a lawsuit, it's best not to have a history of trying to drum up publicity for other lawsuits you've been involved in. So holds the Tenth Circuit in a decision denying leave to proceed as a Jane Doe, but allowing for some information to be filed under seal.
- As settlers began occupying Wyandotte land in the 18th century, its people agreed to a series of treaties that removed them to present-day Kansas and then to Oklahoma. The feds later dubbed the treaties unconscionable, awarding the Tribe about $3 mil in damages with $100k earmarked to purchase lands for the feds to put into trust. The Tribe first invested the funds, later commingling them with other funds, and eventually bought a 10-acre lot in a Wichita, Kan. suburb it sought for trust status. The feds took the land into trust in 2020 and ruled the Tribe could operate gaming there. State: The murky accounting means that the funds used to buy the land weren't the earmarked funds, so no trust should follow and no gaming should happen. Tenth Circuit: The feds properly relied on expert accounting material in granting trust status and correctly concluded that the Tribe could conduct gaming on the parcel. Partial dissent: The feds needed to do more when deciding to allow gaming.
- And in en banc news, the Ninth Circuit (over several dissentals) will not reconsider its decision that the Cruel and Unusual Punishment Clause prevents Grants Pass, Ore. officials from ticketing homeless people for, among other things, sleeping in public parks or in their cars. (IJ joined with some friends in an amicus brief to argue the Excessive Fines Clause prevents such ticketing.)
- And in state court news, after two arguments and three briefings in which IJ (as amicus) made the case that it violates due process for state trial courts to depend on fees generated from convictions to keep their lights on, the Michigan Supreme Court decided not to decide—dismissing the case as improvidently granted. Phooey! But we wouldn't be surprised to hear these arguments again soon.
Friends, a very solid civil forfeiture reform bill is working its way through Congress at the moment, recently passing out of the House Judiciary Committee by a unanimous vote. Click here to read The Washington Post Editorial Board's endorsement of the legislation. Or click here for a breakdown of some of the bill's key provisions.