The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

SWAT takings, retaliatory liens, and a Spam confiscation.


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

CERT GRANTED! Friends, we are excited to share that the Supreme Court has just taken up Gonzalez v. Trevino, an IJ case about officials who spent months scheming to have our client jailed on bogus charges after she criticized them—and whether the First Amendment might protect against such a thing.

New on the Short Circuit podcast: Special guest Prof. Daniel Epps joins the show to talk about the Fourth Amendment and general law.

  • New York prisoner hands a can of Spam to another inmate. A corrections officer—who apparently doesn't like Spam—confiscates the can. Original prisoner demands the Spam back. For this he is locked in a holding cell for 23 hours a day, leading to a revocation of his upcoming parole. And all that without a hearing. Due process violation? Second Circuit: Maybe, but qualified immunity so we're not going to tell you.
  • Promising basketball player commits to the University of Louisville in exchange for a full-ride scholarship. Yikes! Seemingly unbeknownst to the youth, his father, as facilitated by an agent, accepted $100k from Adidas to entice his son to attend Louisville, a school sponsored by Adidas. When the FBI's investigation becomes public, the school refuses to allow the student to practice or play (but did not withdraw his scholarship), and his basketball career didn't take off. Did Adidas and the agent do a RICO to the student? Fourth Circuit: They did not.
  • After fugitive holes up in innocent third party's McKinney, Tex. home, SWAT officers shoot tear-gas grenades into the home, drive through the front door, etc. The damage leaves the homeowner in financial ruin. Must the city compensate the homeowner? Jury: Yup, pay $66k. Fifth Circuit: Everything the city argued is wrong, but we reverse anyway on other grounds not briefed. (This is an IJ case.)
  • Texan Jedidiah Murphy, on death row for the 2000 carjacking murder of a 79-year-old woman, seeks an eleventh-hour stay of execution that will allow him to have DNA testing performed on certain evidence. But the evidence wouldn't prove him innocent of the murder, just an alleged kidnapping that was considered at sentencing for assessing future dangerousness. The Fifth Circuit is already considering a case on the same issue that is fully briefed, argued, and awaiting decision, so the district court grants a stay pending the outcome of that case. Fifth Circuit: Which was reasonable enough. Dissent: I don't have time to point out all the errors in the majority opinion, so I'm just going to attach what I think the majority opinion should have said. (NB: The day after this ruling was filed, the Supreme Court dissolved the stay and Texas executed Murphy.)
  • Investors in Fannie Mae and Freddie Mac sue over some super-complicated stuff related to mortgages and bailouts and whatnot. They take it all the way to the Supreme Court! Which says (2021): There's an Appointments Clause problem here. Remanded to see if it caused the investors harm. District court: Yeah, even if appointments were made differently God knows if they would have been better off. Too speculative. Fifth Circuit: Affirmed. Every time you make an assumption . . .
  • Former NFL running back—forced out of the game by multiple concussions over an eight-year career—applies for and is granted disability benefits from NFL's retirement plan. When the Social Security Administration finds him entirely disabled, he goes back to the NFL and gets his benefit increased to a higher tier, but not the highest tier. He doesn't appeal that ruling, but two years later goes back and seeks adjustment to the highest tier. The NFL denies the adjustment and the player sues under ERISA. Fifth Circuit: The district court's opinion paints a devastating picture of the NFL's "rubber stamp" review process, but he needed to appeal that first adjustment.
  • Man cocked a gun and threatened to kill me, the mother of his children tells police no more than fifteen minutes later. "I have adrenaline pumping through me." The man, at trial: These statements are hearsay. They are definitely not admissible as excited utterances. Sixth Circuit: This is not a close case. Conviction affirmed.
  • During a nighttime protest in the wake of George Floyd's murder, Des Moines, Iowa police officer tackles, pepper-sprays a news photographer and arrests him for "failure to disperse." Charges dropped, the photographer sues. Eighth Circuit (over a partial dissent): No qualified immunity for the officer on the photographer's Fourth Amendment claims for unlawful seizure and excessive force. The photographer was standing by himself, not as part of an unlawful assembly, and the officer tackled him for basically no reason. To trial the case must go.
  • Half of the Sunset Strip Killers duo is on California's death row for six murders. In 1992, he filed a pro se "writ of habeas corpus" seeking counsel to investigate possible habeas claims but without seeking habeas relief. As that was filed before AEDPA's enactment in 1996, does he have wider latitude in seeking habeas relief? Ninth Circuit: He does not. His original petition didn't seek adjudication of the claims on the merits, so it doesn't count as a habeas petition. Accordingly, his 1997 petition is the one to review, and it fails on the merits. (Update: He died the day after this opinion was released.)
  • It's not every day that a federal appellate court holds a campaign finance disclosure law unconstitutional. But the stars aligned for Wyoming Gun Owners, a nonprofit gun rights advocacy group that was fined $500 for violating Wyoming's "electioneering communications" disclosure laws after it ran provocative radio ads in the state's 2020 primary election. The Tenth Circuit—per Judge Tim Tymkovich, a campaign finance expert from his days in private practice—holds that the disclosure regime is unconstitutional as applied to the "mom-and-pop style issue advocacy outfit." As a bonus, the panel also reverses the district court's denial of attorneys' fees.
  • Textualism fight at the Eleventh Circuit, where the whole damn banc is divided on whether "any officer or employee of the United States" includes former officers and employees. Nine judges say no, which is good news for Timothy Pate, a/k/a Akenaten Ali, the self-described "heir to the kingdom of Morrocco," who was convicted of filing retaliatory liens against property owned by a former Commissioner of the IRS and a former Secretary of the Treasury after the IRS refused to refund him $2.7 million in taxes in 2015. (His Highness reported no wages or salary.) Three judges think that result is rather silly.
  • And in en banc news, the Ninth Circuit will reconsider its recent decision that there's no conflict between an Idaho law that prohibits most abortions and the federal Emergency Medical Treatment and Labor Act.
  • And in more en banc news, the Ninth Circuit will not reconsider its ruling that a detainee fighting deportation was not owed a second bond hearing as a part of his habeas challenge. Eleven judges—which is not enough in the Ninth Circuit—would have voted to go en banc.
  • And in additional en banc news, the Eleventh Circuit will reconsider its decision that prisoners must show prison officials acted with more than gross negligence, rather than more than mere negligence, to state a claim for deliberate indifference. (Don't get too excited; at least one member of the court thinks that not even recklessness will suffice.)

New case! Last spring, Ocean Springs, Miss. officials declared that a century-old Black neighborhood full of modest but well-maintained homes is in fact blighted and a slum, a designation that will allow officials to use eminent domain to seize the properties and turn them over to another private owner. And they did it in secret. Mississippi law does not require any notice to property owners, who have only a 10-day window to challenge a blight designation. So this week, Cynthia Fisher and several of her neighbors filed suit, arguing the law violates the Fourteenth Amendment. Click here to learn more.

New case! Last year, Noah Petersen was arrested while calmly reading a prepared statement, in which he called the mayor and police chief fascists, during the public comment period at a Newton, Iowa town hall meeting. But the First Amendment—and the Fourth and Fourteenth—are just empty promises if officials can have their critics jailed on a whim, so this week Noah filed suit to vindicate his rights. Click here to learn more.