The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Citizen Trump, political chalking, and rough business.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! Just as Peter and Annica Quakenbush were about to open a conservation burial ground (or green cemetery) on their heavily forested property in rural Michigan, local officials passed an ordinance banning cemeteries. But the Michigan Constitution protects the right to use property and engage in any business that doesn't harm the public. Click here to learn more.
- D.C. Circuit: Despite some pretty wild arguments to the contrary, it turns out that the president of the United States is not immune from criminal prosecution after he leaves office for illegal actions taken while in office. This has some implications for former President Donald Trump who, "[f]or the purpose of this criminal case" alleging an unlawful attempt to overturn the results of the 2020 presidential election, "has become citizen Trump."
- Forty-three (!) Pennsylvania State Police SWAT team officers execute a pre-dawn, no-knock raid on the home of a Bangor, Penn. family. In technical parlance, they beat the snot out of the family—most egregiously striking a 76-year-old woman in night clothes in the face with a shield, breaking multiple teeth and a vertebra. Family sues under Fourth Amendment for excessive force. Third Circuit: "Policing can be rough business. But the Constitution requires police to use reasonable restraint, even when force may be necessary." No qualified immunity.
- Carbon County, Penn. trooper pulls over a van with heavily tinted windows. The driver gives evasive answers when asked about the van's registration and tells a story of his travels that sounds suspicious. The van also sports an air freshener. Trooper then detains the van and driver for around an hour until a drug dog arrives, which alerts, leading to the discovery of 20 kilos of cocaine in a hidden compartment. Third Circuit: Enough reasonable suspicion to prolong the stop. Concurrence: But the air freshener wasn't suspicious.
- Concert photographer sues the website Independent Journal Review for copyright infringement after it uses one of his photos of Ted Nugent in its article "15 Signs Your Daddy Was a Conservative" (Sign 5, "He hearts 'The Nuge'"). The website defends that it made "fair use" of the photo of the Motor City Madman and, besides, only made $2-$3 on advertising from the article. Fourth Circuit: Slightly cropping a copyrighted photo of a celebrity for an article discussing that celebrity is not fair use. (Readers are invited to check out page 8 of the decision and form their own opinion.)
- Louisiana man is tried for aggravated battery. The first jury fails to reach a verdict. Judge declares a mistrial and empanels a second jury. Then, after learning that two of the jurors would have difficulty attending the second day of trial, the judge peremptorily declares another mistrial. Jury #3 then votes to convict. Fifth Circuit: Unlike with the first mistrial, there was no sound reason for declaring a mistrial the second time. Double jeopardy. Habeas the corpus.
- Brownsville, Tex. octogenarian stashed cash in her home (to the tune of $600k). She's robbed and murdered; three men were involved, but only two entered the home. One pleads guilty to her murder, one goes on the run, and another is convicted at trial and sentenced to death. The condemned man acknowledges involvement in the robbery but denies entering the home and murdering her. He seeks DNA testing of five pieces of evidence, but he's refused because state law doesn't authorize testing when results would only change the sentence rather than clear someone completely. Fifth Circuit (over a dissent): Even without that statute, the prosecutor wouldn't be obligated to test the DNA because the man remained death-penalty eligible given his involvement in the robbery. So federal courts can't help, and his case must be dismissed.
- Seattle ordinance criminalizes writing on other people's property without the owner's permission. Political chalkers arrested under the ordinance sue. District court: The law sure seems overbroad and vague, so it's preliminarily enjoined across the board. Ninth Circuit: The district court's analysis of the ordinance's scope relied mainly on fanciful hypotheticals, like whether the law would criminalize signing a guest book. The preliminary injunction is vacated, though the chalkers might have as-applied challenges they can pursue on remand.
- Severely autistic child's behavior improves dramatically and she stops harming herself after a doctor-recommended course of treatment with cannabis oil. But someone submits an anonymous report to child protective services, and a Los Angeles social worker secures a warrant to have the child and her sibling taken away from their parents, telling the judge that the parents had begun treatment without consulting a doctor and that the children were in danger. Ninth Circuit: That is what is commonly known as a "lie." Most of the parents' claims can go forward.
- Allegation: U.S. Marshals sneak up on suspect, kick him in the head, and take turns stomping on him while he's unconscious. Unconstitutional excessive force? Tenth Circuit: You can't sue federal officers for violating the Constitution. (IJ filed an amicus brief urging a different course.)
- Georgia man uses Roundup for decades on his lawn. Develops cancer. Sues the manufacturer. The label on the many packages of Roundup the man purchased did not warn of carcinogenic effects and was approved by the FDA. Does that preempt his state law claim that Roundup caused his cancer? Eleventh Circuit: Perhaps, depending on what the state tort law is. But not in Georgia which, if anything, requires less of the manufacturer than federal law does.
- And in en banc news, the Fifth Circuit will not reconsider its decision that Louisiana officials who shaved a Rastafarian inmate's head (after he gave them a copy of a previous opinion ruling finding such haircuts illegal, which they tossed in the trash) cannot be sued for damages under the relevant statute, and it's up to the Supreme Court to say otherwise. Six judges would have heard the case.
- And in more en banc news, the Ninth Circuit will not reconsider its decision that a Washington district court improperly exercised personal jurisdiction over an Indian company that lacked adequate minimum contacts with the United States. Six judges dissent, arguing that the Foreign Sovereign Immunities Act doesn't have a minimum contacts requirement and the Ninth Circuit was wrong to append one to it 40 years ago. Senior Judge O'Scannlain writes separately to let everyone know that, even though he's no longer eligible to vote on en banc petitions, he agrees with the dissenters.
People often think of qualified immunity in terms of police misconduct, but Short Circuit readers know it goes further. Unaccountable, a new IJ analysis of more than 5,500 federal appellate opinions involving the doctrine, reveals just how much further. It found only 23% involved cops accused of excessive force. In fact, social workers, university deans, mayors, and many other officials claimed qualified immunity. And while policing-related violations were most common, First Amendment violations appeared in nearly 20% of appeals. Most often, these appeals alleged premeditated retaliation for protected speech or activity. The analysis also finds the doctrine puts victims of government abuse at a distinct disadvantage. In addition, it clogs the courts with lengthy litigation and often makes the law more confusing, undermining some of the very goals its supporters claim it's needed to achieve. These findings strengthen the case for ending qualified immunity. Click here to read the report and here to read an ABA Journal article about it.
