The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Odor ordinances, woke training, and legislator walkouts.


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

Last month, the Fifth Circuit granted qualified immunity to a Waxahachie, Tex. SWAT officer who directed his team to smashbangraid the wrong house. It was obviously the wrong house because it had the wrong house number, the wrong amount of wheelchair ramps leading to the front door (1), the wrong number of chain-linked fences around the perimeter (0), and various other readily identifiable indicators of wrongness. Click here for IJ's petition urging review en banc.

  • Nearly two-thirds of the world's cobalt (an essential metal for the rechargeable lithium-ion batteries that power modern electronics) comes from the Democratic Republic of the Congo, some by forced labor, including that of children. Allegation: By purchasing cobalt from the global cobalt supply chain, Apple, Alphabet, Dell, Microsoft, and Tesla participated in a venture that engages in forced labor in violation of the Trafficking Victims Protection Reauthorization Act. D.C. Circuit: Purchasing a commodity in an ordinary arms-length transaction isn't "participation in a venture" within the meaning of the law.
  • In 2022, Rhode Island officials banned large capacity magazines that enable more than ten rounds of ammunition to be fired before reloading. Is the ban consistent with our historical tradition of firearm regulation? The First Circuit says yes.
  • Does prolonged solitary confinement implicate a liberty interest protected by the Due Process Clause of the Fourteenth Amendment? First Circuit (en banc): Sometimes! But we hold the law wasn't clearly established when this guy was held in solitary for nearly two years, so qualified immunity. Concurrence: Why spoil the mystery? Let's just say qualified immunity.
  • Nonprofit sues Pfizer, alleging that its fellowship program for Black, Latino, and Native American undergraduates unlawfully excludes white and Asian American students, alleging that "Member A" and "Member B" are otherwise eligible for the fellowship. Second Circuit: Those aren't names, and if you don't name names, you don't have associational standing to sue on their behalf.
  • Michael Avenatti pilfered $300k from a book contract for his then-client, Stormy Daniels, for which he was convicted of wire fraud and aggravated identity theft. Second Circuit (unpublished): The evidence against him was overwhelming, so any error is harmless. Conviction affirmed.
  • New Texas law requires porn sites to verify users' age and give health warnings. District court: Enjoined! Fifth Circuit: Partly reversed. Rational basis applies and the age verification is legit. And that's true even though the Supreme Court has struck down similar regulations on internet speech. See, we're basing this on a Warren Court opinion that applied the test from another Warren Court case where one of the parties was A Book Named 'John Cleland's Memoirs of a Woman of Pleasure'. But the health warning requirement's gotta go because minors won't understand the warnings anyway. Dissent: This is like burning a house to roast a pig.
  • Federal law provides that any Medicaid patient must be able to obtain medical care "from any institution … qualified to perform the service." South Carolina: We would like to disobey this by disqualifying Planned Parenthood for non-medical reasons, so could the federal courts please say the requirement can't be enforced by private patients? Fourth Circuit (2019): No. Fourth Circuit (2022): Still no. Fourth Circuit (2024, after major Supreme Court decision on private enforceability of federal statutes): We deny you thrice. Concurrence: But maybe? The Supreme Court's precedents in this area are still very confused.
  • SpaceX sues the NLRB in Texas, but the Texas district court transfers the case to California, where the "most significant part of the events" giving rise to the lawsuit took place. SpaceX seeks mandamus to transfer the case back. Fifth Circuit (in a one-sentence order): Mandamus denied. Dissent (Elrod, J.): Venue is property where any substantial part of the events took place, not just the most substantial part. Transferring the case was an abuse of discretion.
  • Allegation: Houston police officer trespasses on private property, screams at security guard (perhaps because he mistook the guard's legal firearm for an illegal one), and is told to leave. He does but returns and arrests the guard. A grand jury indicts, but prosecutors dismiss the case. Can the guard sue the officer for false arrest? Fifth Circuit: Qualified immunity.
  • Allegation: Homeless man (with outstanding warrant for failure to pay a fine) shows up to mom's workplace to ask for money and shelter. She calls Coal Grove, Ohio police instead. The man runs and an officer tases him in the head. He falls, sustaining serious injuries that put him in a multiday coma. Sixth Circuit (over a dissent): Qualified immunity. It's "reasonable for officers to tase fleeing suspects." And while a head-tasering might be excessive, it's not clearly established.
  • In Prison Litigation Reform Act cases, does the tolling provision of Wisconsin's statute of limitations toll the limitations period only for the time during which a prisoner's administrative grievance is pending or does it also extend to the days between the complained-of incident and the filing of that grievance? Seventh Circuit: A good question, which we won't answer today because these particular prison officials failed to argue the point below. Concurrence: Agreed, but while we're on the subject—the time leading up to the filing of the grievance is definitely tolled, and district courts should start holding as much.
  • Plaintiff: Indiana didn't pay me interest when it held my property, which violates the Takings Clause. Indiana: We will absolutely pay interest when we do this in the future. Plaintiff: But what about me? Seventh Circuit: Sovereign immunity means never having to say you're sorry.
  • South St. Paul, Minn., which used to be peppered with stockyards and meatpacking facilities, redeveloped in the 21st century. A few holdovers remain, including an animal-carcass rendering plant that stinks. Officials rezone the rendering plant's land, deem it in violation of an Odor Ordinance (using a Nasal Ranger), and slap it with $35k in fines. Plant: You only adopted the Odor Ordinance because we challenged the previous odor legislation, which is retaliation in violation of the First Amendment. Eighth Circuit: The City amended its odor strategy after recognizing its previous approach was unlikely to survive a legal challenge, which isn't retaliation.
  • Sacramento authorizes permits for marijuana dispensaries but (simplifying a lot) makes them available only to current or former city residents. A violation of the dormant Commerce Clause? District court: This case doesn't really qualify for Pullman abstention. Or Burford abstention. Or Thibodaux abstention. Or Colorado River abstention. But it kinda-sorta feels abstention-y. Is "Pullfordodaux River" abstention a thing? Ninth Circuit: It is not. No abstention doctrine applies here, and the whole is not greater than the sum of its parts. The case shall proceed.
  • Oregon requires a supermajority quorum in its legislature, which has encouraged a problem of legislator walk-outs. So the people passed a referendum to punish legislators with too many absences from running for re-election. Walkers-out: We have a First Amendment right to absent ourselves in protest and shouldn't be excluded from the ballot. Ninth Circuit: Nay, failing to attend is a legislative act, not personal expression protected by the First Amendment. Plus: Dueling concurrences on how the First Amendment would apply if it were personal expression.
  • Newborn falls off bed; doctors say baby's ok. San Bernardino, Calif. social workers get involved anyway. They open a custody hearing without ever telling mom, who loses custody. Then, they lie to the judge at that hearing. Then, they invoke absolute & qualified immunity after mom sues. Ninth Circuit: You can't have either. Absolute immunity protects "quasi-prosecutorial decisions," not perjury and denying notice. And qualified immunity isn't for such "obvious" wrongdoing.
  • Ninth Circuit (unpublished): "[T]he fact that Plaintiffs' site plans convey information through language and graphics does not ipso facto subject the Act to First Amendment scrutiny." Which is a weird thing to say, because that's totally what that ipso factos. (This is an IJ case.)
  • Oak Flat is an area within the Tonto National Forest of great spiritual importance to the Western Apache Indians. It also sits on the world's third largest deposit of copper. The federal gov't transfers the land to a copper mining company, but a nonprofit representing the interests of Apache Tribe members sues under RFRA and RLUIPA to halt the transfer. The plaintiff loses, and if you have the time to untangle the 241 pages of the six opinions generated by the en banc Ninth Circuit, more power to you.
  • Word to the wary: If you already are a felon and you're going to ship guns and ammo to the Commonwealth of Dominica while using a false name, wrapping the contents in aluminum foil, and telling the clerk that the box simply contains "two frying pans," don't wear a sweater with your employer's logo on it. Because the authorities are probably going to identify you, and the Eleventh Circuit finds naught in our history and tradition of firearm regulation that might call into question the federal ban on felons possessing firearms.
  • Under the Stop W.O.K.E. Act, Florida bans employers from holding mandatory employee training expressing viewpoints that the state disagrees with. Florida says it hasn't regulated speech at all, just the "conduct" of holding meetings. Eleventh Circuit: "We have rejected similar conduct-not-speech claims before … . So too here. The only way to discern which mandatory trainings are prohibited is to find out whether the speaker disagrees with Florida. That is a classic—and disallowed—regulation of speech." (Ed.: Contra the Ninth Circuit, this is what speech/conduct analysis is supposed to look like.)
  • And in en banc news, the Sixth Circuit will not reconsider its decision to not reconsider its decision to affirm a revocation of supervised release based on nonstatutory factors. On the plus side for the unsuccessful defendant, one more judge joined a dissent from denial than did the first time the circuit denied the defendant's en banc request.

Tom Manuel owns land in Ethel, La., that he uses for his forestry business/tree farm as well as for recreation and wildlife conservation. It is fenced and marked as private. Nevertheless, state game wardens have repeatedly entered the property without consent, a warrant, probable cause, or reasonable suspicion in search of hunting violations—and each time left without issuing any citations. Tom wants the invasions to stop, so this week he joined with IJ to vindicate his rights under the Louisiana Constitution, which secures all property against "unreasonable searches … or invasions of privacy." Click here to learn more. And also click here for a lovingly crafted, documentary-style podcast episode on why officials might wrongly think they have carte blanche to invade private land.