The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Short Circuit: A Roundup of Recent Federal Court Decisions

Firearm privacy, trial transcripts, and a Good Samaritan.


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

New cert petition! Mason Murphy was arrested for walking on the wrong side of a rural road in central Missouri. OR WAS HE? He would like to argue that in fact he was arrested as punishment for his protected speech, and that there's pretty darn strong evidence of the officer's true motive. For one thing, no one is ever arrested for walking there. For another, the officer's bodycam caught him calling others to ask, "What can I get him on?" But the lower courts are deeply split on what evidence people can use to prove up retaliatory arrest, and SCOTUS should surely take a look.

New on the Short Circuit podcast: We grab some bricks and consider if the Anti-Riot Act might be overbroad. And then: an "amazing" qualified immunity case about a Good Samaritan's arrest.

  • In a rare sua sponte en banc hearing, the Third Circuit unanimously abandons its previous practice of reviewing dismissals of shareholder derivative actions for failure to plead demand futility under an "abuse of discretion" standard. Instead, it will now review those dismissals de novo. Unfortunately for the plaintiffs, they lose under that standard, too.
  • Catholic high school in North Carolina fires teacher who intends to marry his same-sex partner. When sued for sex discrimination under Title VII, the school raises several defenses, but expressly waives any argument under the "ministerial exception" to Title VII. Nevertheless, the district court considers the question and holds that the exception does not apply. Fourth Circuit (over a dissent): Actually, it does apply, the school's waiver notwithstanding.
  • Baltimore County, Md. jail oversees a "work detail" program under which detainees work for various arms of the county, including the county's recycling center, where they are paid $20 per day despite regularly working nine-to-ten-hour shifts sorting recycling. Former detainee files a class action, alleging that he's owed unpaid minimum wage and overtime under the Fair Labor Standards Act. Fourth Circuit: Maybe so. The FLSA doesn't apply to work in or for the prison directly, but it might apply here. Case un-dismissed.
  • "For those who worry that qualified immunity can be invoked under absurd circumstances: Buckle up." From that opening line, you can correctly predict this Fifth Circuit barnburner will not be kind to these Houston officers who arrested a Good Samaritan while letting a dangerous drunk driver go, and then submitted a wildly misleading affidavit to kick off a baseless prosecution. (Your summarist's query: Why again do such "absurd" invocations of qualified immunity get a rare and special right to interlocutory appeals, adding years to litigation?)
  • Washtenaw County, Mich. man fatally overdoses on fentanyl in 2000. His family claims that he got the drugs from a worker at a University of Michigan pharmacology lab that tested the effects of controlled substances on animals, and they sue the lab worker, the university, and the professor in charge of the lab for his death. (Police investigated the lab worker; prosecutors never charged him.) Sixth Circuit: Can't sue the university or the prof running the lab on account of immunity (sovereign and qualified). Being a little lax about locking up drugs doesn't shock the conscience.
  • Wisconsin man is convicted of murder in 1996 and sentenced to life imprisonment. Contrary to his instructions, his lawyer fails to file his appeal. Yikes! He spends the next two decades trying to get the state courts to let him get his appeal. In 2016, they finally give him the thumbs-up. Huzzah! But in order to appeal, he needs a transcript of the original trial. Which he tried to get in 1997 but couldn't because he lacked the money. And the court reporter's notes have since been destroyed. Yikes again! State trial court: Given the absence of a transcript, it's only fair he gets a new trial. Huzzah! State appeals courts: Au contraire, it's his fault he doesn't have a transcript since he should've ordered it back in the '90s. ::Sigh:: Yikes. Seventh Circuit: Which he tried to do. But you all said no because he was too poor! Wisconsin's behavior is a "travesty of justice." If you don't start a new trial within two months, the guy needs to be released on bail. And if you don't start it within three, he's to be released unconditionally.
  • California law requires the state to disclose information from its databases of registered firearms owners to a research center at the University of California-Davis and gives the state discretion to disclose the information to other accredited research institutions. Registered firearms owners sue, alleging, among other things, violation of their right to informational privacy and the Second Amendment. Ninth Circuit: They lose. The data is not "highly sensitive" and, in any event, is subject to strict data security precautions.
  • When Inglewood, Calif. police officers make to pull car over, a passenger tosses a gun out of the window; he's later convicted of being a felon in possession—he has five prior convictions. But does the fact that they were all non-violent make this latest conviction unconstitutional? Also, is he a member of "the people"? Ninth Circuit (over a dissent): The people he is. And there's no historical analog for disarming non-violent felons. Only, arguably, "British Loyalists, Catholics, Indians, and Blacks."
  • A woman is murdered in Torrance, Calif. in 1979 with a handmade garrote. The investigation stalls, but detectives pick up the cold case and home in on an ex-boyfriend of the woman. Based only on circumstantial evidence—such as picture-hanging wire found at his mother's house that is similar to the wire used in the garrote—the man is tried in 2014. The court does not allow him to present exculpatory evidence of another viable suspect, an ex-boyfriend of the woman who had had dinner with her the night of her murder. He's convicted. Ninth Circuit: That evidence was powerful for the defense and most definitely should not have been excluded. Habeas granted. Dissent: The evidence shouldn't have been excluded, but it was harmless error.
  • University of Colorado, Apr. 2021: All employees and students must get the COVID-19 shot, although we do have a religious exemption. Various applicants: Hey, we're religious. School: Oh no, see by "religious" we meant super-against-all-vaccines-religious. Which really is just Christian Scientists and Jehovah's Witnesses. The rest of you are just objecting on "personal" grounds. I mean, some of my best friends are Catholic, and they're fine with vaccines. Plus, some of you aren't even members of an "organized religion." Tenth Circuit: Wow, that's super unconstitutional. Dissent: Animus? What animus?
  • Aurora, Colo. police investigate a call about men in a parking lot taking guns in and out of their pockets near an SUV. The SUV drives away at a normal speed, leaving one man behind. The man immediately complies with an order to raise his hands and is detained; officers learn the man's name and that he's a convicted felon. Other officers stop the SUV after it runs a red light and discover a stolen gun. Officers use the detained man's name to get a warrant for his DNA, which ties him to the stolen gun. Should the man's name have been suppressed? Tenth Circuit: Suppress! Officers violated the Fourth Amendment by detaining the man without "any hint of any kind of illegality whatsoever." Concurrence: The 911 call described suspicious activity, but the man didn't match the caller's description.
  • Federal prisoner alleges guards beat him and nurses failed to provide medical care, and he sues for constitutional violations under the Bivens doctrine that allows suits against federal officials directly under the Constitution. Defendants: Bivens is dead. Tenth Circuit: As with Schrödinger's cat, we cannot say—because you don't get to skip ahead to an appeal before final judgment. Dissent: Bivens is as dead as Marley from A Christmas Carol, and we should just say so now. (Ed. note: This strikes us as an odd allusion because Marley nevertheless played a famously important role in the story. Perhaps Bivens's ghost likewise has some vitality left?)

Flawless victory! It is with great fellowship and soaring spirit that we report to you that the Tennessee Court of Appeals has ruled that the state constitution cannot abide state wildlife officials' practice of skulking around on private land in search of hunting violations without notice, consent, or judicial oversight. Indeed, according to the court, that practice bears a "marked resemblance" to the very abuses that sparked the American Revolution. Just so! Click here to read the opinion. And click here for a lovingly-crafted, documentary-style podcast on the history of the "open fields doctrine," which okayed gov't trespassing on all private land (save the immediate vicinity of the home) under the federal Constitution.

Ignominious defeat! It is with horror and shame that we report to you that the Michigan Supreme Court, in a unanimous decision, has okayed warrantless drone surveillance for the purpose of civil code enforcement. The court dodged the question of whether repeated drone snooping is a "search" under the Fourth Amendment, instead holding that, no matter the answer, the gov't can still use the drone evidence in court. "Courts ordinarily order evidence from unconstitutional searches excluded, to disincentivize officials from violating our Fourth Amendment rights," said IJ Attorney Mike Greenberg. "The court's holding creates a massive hole in that rule, removing that incentive for officials who pursue civil, rather than criminal, violations." Click here to learn more.