The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Student loan forgiveness, critical infrastructure, and inexcusable incompetence.


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 Bound By Oath podcast: For decades, federal courts have consistently told property owners seeking to challenge zoning regulations as arbitrary or irrational that those types of claims belong in state court. So on this episode, we head to New Jersey, whose state judiciary first sought to rein in exclusionary zoning way back in 1975. And then we take a look at some current efforts in other states to protect property rights under state constitutions.

New on the Short Circuit podcast: A case from Chicago on coding and the First Amendment. And a case from Chicago on union pensions and penalties.

  • In 2021, concerned that the Chinese gov't may be able to use Chinese-manufactured video-surveillance equipment to spy on American infrastructure, Congress enacted the Secure Equipment Act, directing the FCC to prohibit the sale of these products for use with "critical infrastructure." The U.S.-based affiliates of these manufacturers sue. D.C. Circuit: The prohibition stands, but the definition of critical infrastructure adopted by the FCC is too broad—so broad that the gov't couldn't identify anything that wasn't critical infrastructure.
  • In 2020, the DOJ settled a pending antitrust case against the National Association of Realtors with a consent decree. Eight months later, it changed its mind, withdrew the consent decree, and restarted its investigation. Realtors: It seems like this violates the ancient Latin legal maxim of "no takesie-backsies." D.C. Circuit (over a dissent): Your settlement agreement makes pretty clear that the gov't can takesie-backsie whenever it pleases.
  • Just one day after being appointed a public defender due to indigency, Puerto Rican criminal defendant has private counsel appear in the case. The gov't thinks something fishy is going on and asks for a hearing about the source of funds. The trial court agrees and puts one of the defendant's private lawyers on the stand, where he asserts the Fifth Amendment. "So you're saying you've done something criminal?!" queries the court, before disqualifying the lawyer and ordering him to return his fees. First Circuit: Reversed. The gov't's asserted reason for the hearing was potential conflict of interest, but there's no reason to believe there was a conflict here. The lawyer should never have been put on the stand.
  • Six folks who had been deported are prosecuted for illegally reentering. Defendants: When Congress passed this law in 1929 it was for super racist reasons which carry forward to the current version of the law and makes it unconstitutional. Fourth Circuit: Nope. Maybe that 1929 stuff was super racist—the history certainly looks sketchy to us—but it was repacked with a bunch of other statutes in 1952 when there was no evidence of racial motive and has been amended a bunch since then.
  • Dallas police box in a parked vehicle. The driver reverses at a low speed into a police cruiser, then drives forward into a fence, and then again reverses at under three miles per hour. Officers open fire, killing the driver. A city investigation determines that an officer lied when he said he perceived a threat to fellow officers and that the shooting violated dept. policy. But did the shooting violate the Constitution? Fifth Circuit (unpublished): Who can say? No previous case about the unreasonable use of deadly force involving reportedly stolen vehicles reversing into police cruisers at night. Dissent: We can say! The officers' "inexcusable incompetence" is obviously a constitutional problem.
  • After the feds make it easier to discharge student loan debt, an association of Texas higher ed schools cries foul. District court: And they have standing but aren't irreparably harmed. So no preliminary injunction while the case proceeds. Fifth Circuit: The regulatory burdens schools have to deal with are immediate. Plus, the feds likely lack the authority to do all this debt relief. Enter a PI and make it nationwide.
  • Allegation: Driver drops off passengers at a Toledo, Ohio Walmart and waits in a loading zone for them to return from picking up prescriptions. Yikes! An off-duty sheriff's deputy in uniform who is working security harangues the driver, tries to forcibly drag him out of the car, and then tases him repeatedly. Fourth Amendment violation? Sixth Circuit: No qualified immunity for trigger-happy Paul Blart on these allegations (but various other claims dismissed). Dissent: Watching a video of the encounter, seems to me like the driver was resisting arrest and the deputy should get immunity.
  • Transgender Missouri prisoner alleges that guards performed a humiliating public strip search, refused to honor gender identity, denied medical care, and retaliated for filing this lawsuit and other grievances. Guards invoke qualified immunity. Eighth Circuit: Most claims can proceed. As alleged, the vicious search clearly violates the Fourth Amendment, and most of the alleged retaliation violates the First Amendment. But there was no clearly established right to be treated according to preferred gender identity, and the medical claim was too vague. Partial dissent: I think there's enough to the allegations to let the gender-identity and medical-denial claims proceed at this stage.
  • Biracial Black and Brazilian high school student starts an online petition to "Start Slavery Again," which he circulates to other members of the school's football team, prompting three other students to chime in supportively. This is not well received by the school, which ultimately expels the student who created the petition and suspends the three others for the remaining 170 days of the school year (and also requires them to attend 10 hours of diversity and inclusion training before they can return the following school year). The students sue to challenge their punishments. Eighth Circuit: And all their legal claims fail.
  • Washington man runs an organization that purports to help illegal aliens become U.S. citizens through adult adoption. He's convicted of unlawfully "encouraging or inducing an alien to come to, enter, or reside unlawfully in the United States for private financial gain." He challenges his conviction. Ninth Circuit (2022): That provision is unconstitutionally overbroad because it could reach all kinds of protected speech. Conviction vacated. Supreme Court (2023): Nope. It only reaches purposeful solicitation and facilitation of illegal acts. Ninth Circuit (2024): In that case, the jury should have been instructed on that, and it wasn't. So conviction vacated again.
  • Every month the Census Bureau distributes a long-form survey called the American Community Survey (ACS) to a randomly selected set of households nationwide. In theory, participation is mandatory and refusal to participate is punishable by a $100 fine. In practice, the Bureau has not prosecuted anyone for failing to complete the ACS or its predecessor survey since the 1970s. Instead, they prefer to just bug you about it by visiting you at home and sending you letters. Ninth Circuit (unpublished): Neither of which is enough to establish a ripe legal controversy for plaintiffs who would rather not fill out the survey.
  • Allegation: After participating in a peaceful protest about George Floyd's murder, couple searches for another at an Atlanta mall. Unsuccessful, they head out and come across an unattended barricade blocking the road. Woman moves barricade a few feet and gets back into the car's passenger seat. Yikes! Cops arrive, and one points his gun at the woman, shouts "get out of the fucking car," yanks her out before she can, slams her into the pavement—breaking her collar bone—handcuffs her, and then pushes her into the back of the cop car where she sits for nearly an hour. Body-slamming cop: Please consider a bystander video spliced together with body-cam footage to give me qualified immunity. Eleventh Circuit: No way. The district court might be able to consider it later, but it's not clear at this point that the video is authentic. Besides that, he lacked reasonable suspicion to stop the car in the first place.
  • And in amicus brief news, IJ is asking the Third Circuit to take the Supreme Court at its word when it says things like "expert advice is fully protected speech" and "laws that regulate speech based on its subject matter are content-based and subject to strict scrutiny." Does this mean the First Amendment protects legal advice, even by non-lawyers? You bet it does! And we explain why that's not half as scary as courts seem to think it is.

Law students! Come to IJ's annual Law Student Conference, the weekend of June 7-9, at IJ's Arlington, Va. office. This event will focus on what law school often does not – how to find and litigate public interest cases in the real world. We'll share our public interest strategies, our current areas of litigation, and how we put together a case from start to finish. And most importantly, our clients will share their stories and explain what it means to team up with IJ and fight against gov't abuse. For students who aren't local, travel and lodging expenses will be covered! Click here to have a look at the agenda and to apply. Applications are due April 19!