The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
New on the Short Circuit Podcast: A big victory (in an IJ case) for economic liberty under state constitutions. We unlatch Georgia's now-former lactation consultant license.
- What to do with "huge tracts of land" owned by the feds in southwestern Oregon? Surrounding counties and timber companies want to log it since Congress promised timber revenues when it nationalized the tracts. Interior Department wants to protect endangered owls. President has declared parts of it a national monument to keep it pristine. What a mess! D.C. Circuit: We (mostly) reject the government's argument that it can do whatever it wants without judicial review. But what the government has done is an OK balance of all the relevant statutory requirements.
- Between 2013 and 2017, almost two dozen identical lawsuits were filed against the city of Niagara Falls in state court, each complaining about how the city is remediating the Love Canal Superfund site. But in 2020, all the plaintiffs in the identical lawsuits amended their complaints (identically). Does that mean Niagara Falls gets a second chance to remove the lawsuits to federal court? Second Circuit: Unlike the Superfund program, the federal removal statutes do not concern themselves with really old messes.
- Prison officials: The plaintiff says he exhausted his administrative remedies, but he didn't! We have absolutely no records of his grievance being denied or of his appealing the denial. Second Circuit: That is absolutely slam-dunk proof . . . that you don't have any records, which is perfectly consistent with this guy having filed an appeal and you lot having screwed up your record keeping. Remanded for fact finding!
- Theaters challenge NYC's now-rescinded mandate that allowed only vaccinated patrons to patronize them while imposing no such restriction on churches and schools. District court: This case is moot and no nominal damages as theaters didn't allege injury. Second Circuit: What do you think this place is, the Seventh Circuit? You absolutely alleged injury. But it doesn't mean much as you still lose.
- New York officials hold guy in custody under elsewhere-declared unconstitutional type of sentence. He later sues for damages. District court: Yeah, that was bad. Here's some nominal damages. Second Circuit: So it's true, we do like nominal damages around here. But this guy maybe should have a shot at punitive ones, too? And even compensatory (on the stuff where there's no qualified immunity).
- Connecticut prisoner has an "intolerable" scalp condition consisting of painful scabs and oozing sores. Prison officials allegedly deny treatment for years. District court: there are no binding cases holding that a scalp condition is a serious medical need requiring treatment. Second Circuit: Qualified immunity is specific, but it's not that specific. The guy said his head felt like it was on fire. Reversed and remanded.
- Allegations: The city of Kingston, N.Y. likes two things very much—armored rescue vehicles and citywide surveillance cameras. Protest signs saying "No Tanks" held up during council meetings? Not so much. But is the city's well-timed ban on signs in council meetings a First Amendment violation? Second Circuit: Since council meetings are what kids these days (and the Supreme Court) call "limited public fora," no. The sign ban's fine.
- Does the First Amendment protect the right to distribute government records relating to child abuse? Third Circuit: It certainly does if they've already been released to the public. Thus, Pennsylvania is enjoined from prosecuting a grandmother who wants to distribute previously released documents pertaining to the death of her 2-year-old grandchild to criticize the conduct of the York County Office of Children and Youth Services.
- Dad does The RICO. Government tries to forfeit his ill-gotten gains. But dad gives daughter some of them first. Can she challenge the forfeiture? Third Circuit: There's no money (for her) in the banana stand.
- Ordinarily, filing a late notice of appeal is fatal to your case. But if you're late only because you didn't get notice of the appealable order, the district court can reopen your window to appeal for 14 days. But what if you don't refile your late notice during those 14 days? Well, then you've created what the Fourth Circuit calls "somewhat involved procedural issues" and two-thirds of this panel says you're out of luck.
- If prosecutors don't turn over potentially exculpatory evidence and a defendant on death row finds out about it (by accident) years later, does that mean he gets a new trial? Well, explains the Fourth Circuit over the course of 102 pages, it depends.
- Kannapolis, N.C. police officer catches drug dealer/informant selling crack but says he won't arrest drug dealer if he hands over any other drugs he has and does more to help the police. He agrees, hands over more drugs, and helps police find a fugitive. Officer then decides that's not enough, swears out arrest warrants, and more drugs are found during arrest. Is cop's non-arrest-for-cooperation deal enforceable? Fourth Circuit: Yes it is, but we remand to figure out the terms of the deal and appropriate remedy.
- Louisiana man imprisoned for two years for violating probation. Yikes! The prison misclassifies him as a sex offender and holds him an extra 337 days after his sentence is up. Head of the prison system: Qualified immunity. Fifth Circuit: No. The man alleged rampant over-detention about which the defendant didn't care. If true, it's clearly unconstitutional, so to discovery the parties go.
- Texas man is in pretrial detention when he suffers an epileptic seizure. Within five minutes, police are tasering him. He falls and hits his head on the concrete floor, after which they pin him and continue tasering him. In less than an hour, he suffers cardiac arrest on the way to the hospital. By the next day, he's dead. His estate sues for excessive force. District court: Qualified Immunity. Fifth Circuit: There's enough here to go to a jury.
- Ohio oenophile challenges state law that prohibits him from transporting more than 4.5 liters of wine into the state per month or from ordering directly from out-of-state retailers (in-state retailers are allowed to ship direct to consumers). District court: Sorry, but you've shown only that the state enforces these laws against those transporting or shipping spirits; who knows whether it'd enforce the letter of the law against wine? Sixth Circuit: Seems reasonably likely it would. The plaintiff has standing and the case can go forward.
- Allegation: Wayne County, Mich. jailer kicks pregnant and mentally ill inmate in the stomach, resulting in the stillbirth of her child. She sues without exhausting her available administrative remedies. Sixth Circuit: Nevertheless, her suit may go to trial to resolve the factual dispute as to whether the jailers thwarted her attempts to file a grievance.
- Remember that "it depends" about prosecutors not turning over potentially exculpatory evidence? That also applies for evidence useful for impeaching government witnesses. And for this defendant in the Seventh Circuit, "it depends" means "no," so he's stuck with 156 months for intent to deal meth. But if it's any consolation, the judges wag some fingers at the prosecutors for their poor behavior.
- En route to work, Indianapolis police officer accidentally strikes and kills an eight-months-pregnant woman. Her estate sues. Allegation: The officer was driving 33 miles over the speed limit, illegally changed lanes, and crossed onto the shoulder of the road. A substantive due process violation? Seventh Circuit: No. The cop would need to have been criminally reckless for a due process claim to fly. And the officer here was merely negligent. (The estate's state-law claims could be revived in state court, though.)
- Three Minnesota men are reportedly shooting into the Minnesota River, which almost certainly did nothing wrong. The police arrive and order the men into separate squad cars. Is that a reasonable Terry stop to search for a gun or an arrest without probable cause? With the reminder that Minnesota is in the Eighth Circuit, we'll let readers guess for themselves.
- Man with schizophrenia and other mental disorders is sentenced to 80 months' imprisonment for being a felon in possession of a firearm. Toward the end of his sentence, the federal government petitions to keep him in custody because of his alleged dangerous mental condition. Man: I'd like to represent myself pro se please. Magistrate judge: You believe (incorrectly) that you're a former Navy SEAL and a judge and the secretary of defense and that you executed Bin Laden and that you invented the jet turbine engine. You're not competent to waive counsel. And (following a hearing) the government's petition is granted. District court: Affirmed. Eighth Circuit: Indeed.
- Ninth Circuit: Apple's motion to stay the mandate of the Sixth Circuit—in a lawsuit brought by Epic Games, the makers of Fortnite—is granted until Apple can seek certiorari. Concurrence: We grant these whenever the motion is not frivolous. And Apple's motion is just barely not frivolous.
- California prevents local government employees from soliciting coworkers for campaign contributions but does not prevent state government employees from doing the same thing. Is that wrong? Ninth Circuit: Yes, under the First Amendment and all its potential levels of scrutiny. Concurrence: We should apply strict scrutiny and, well duh, it fails that.
- Group homes for the disabled (including sober living homes for people recovering from addiction) get the short end of the stick in the El Paso County, Colo. zoning code. Other group homes can house up to eight residents without any special authorization, while group homes for the disabled can only house up to five residents. Moreover, group homes for the disabled cannot provide mental health or other medical care, while other group homes can. Tenth Circuit: And these distinctions violate federal housing discrimination laws.
- Colorado man gets into accident while driving a truck for uncle's company. Uncle shows up and criticizes police handling the accident. Police shove him to the ground and arrest him. Qualified immunity? Tenth Circuit: No, criticizing the police is as American as apple pie and can't support probable cause for an arrest or a basis for using such violent force.
- Florida public defender runs for office to replace her boss, the outgoing public defender of Broward County, who is not seeking reelection. On a podcast she accuses the boss of playing golf rather than working, not hiring racial minorities or supporting Black social justice organizations, and having used illegal drugs earlier in his career. After she loses the primary election to another candidate, the boss fires her. She sues for First Amendment retaliation. Eleventh Circuit: Her speech was protected by the First Amendment, but a lot of it was lies and the public defender's office is allowed to fire liars who sow intraoffice strife.
- And in en banc news, the Fourth Circuit will not reconsider its decision upholding the conviction of a criminal defense attorney for money laundering when the jury was not instructed on the applicable statute of limitations.
- And in additional en banc news, the Fifth Circuit will not reconsider its decision that the circuit has not adopted the state-created danger doctrine (but is not ruling out its adoption in the future).
- Speaking of the state-created danger doctrine, in another bit of en banc news, the Ninth Circuit will not reconsider its decision to apply the doctrine to a botched mental health response, but four judges dissent and argue the doctrine isn't a thing.
Carlos Pena was working at the printing and graphics business he owns in North Hollywood when in August 2022 an armed fugitive ran inside the shop to hide. After a 13-hour standoff, an LAPD SWAT team fired 30 rounds of teargas into the shop, causing more than $60,000 in damage. The city refused to compensate Pena even though it admits he did nothing wrong. He's now teamed up with IJ and gone to federal court to receive just compensation for a taking under the Fifth Amendment. Click here for more.