The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Surprise inspections, dangerous fake weapons, and classroom interference.


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! Friends, the gov't has broad latitude to use eminent domain to seize private land for public uses, like parks. But what if the park is a mere pretext and what officials are actually doing is harassing someone they don't like or forcing them out of town? What then? Well, most courts say that's unconstitutional, but earlier this year the Second Circuit disagreed, holding that as long as officials are willing to lie about why they are seizing someone's property all is well. We're asking the Supreme Court to resolve the split. Click here to learn more.

  1. During the wars in Iraq and Afghanistan, many Iraqi and Afghan nationals helped the United States—often at great personal risk. To aid them, federal law authorizes "special immigrant" status to aliens who meet certain criteria. Frustrated by the slow pace with which the feds were processing applications, Congress passed a law ordering them to speed up, and a district court enjoined them to do so. Feds: But it's really hard! D.C. Circuit: We're sure it is. You still have to do it, though.
  2. Trade associations representing manufacturers of medical equipment sue the Librarian of Congress, alleging that new rules exempting their software from the anti-circumvention protections of the DMCA violate the APA. Librarian: I'm the Librarian of Congress, not of some executive agency. I have sovereign immunity and the APA does not apply. D.C. Circuit (over a dissent): No you don't and yes it does.
  3. If public-school students have a First Amendment right to wear black armbands at school in protest of the Vietnam War (in Tinker v. Des Moines (1969), the U.S. Supreme Court said they do), does a Massachusetts middle-schooler have the right to wear a shirt that reads "There Are Only Two Genders" (or that same shirt but with the word "CENSORED" taped over "Only Two")? Or may the school prohibit the shirt under its dress code's hate-speech provision? First Circuit: School may ban the shirt. Under Tinker, public schools may limit student speech if it "substantially interfere[s]" the classroom—and here, the school "reasonably forecasted" the shirt would cause substantial disruption.
  4. Should Philadelphian man, who was sentenced for armed robbery and kidnapping, get a "dangerous weapon" sentence enhancement for using a fake gun? Third Circuit: Yes. The meaning of "dangerous weapon"—as used in the federal sentencing guidelines—is ambiguous. So we turn to the guidelines' commentary, which reasonably defines "dangerous weapon" to include fake guns. Dissent: "A dangerous weapon must be both dangerous and a weapon. Fake guns are neither."
  5. Sometimes when people are evicted, they leave stuff in their former homes. Baltimore was tired of spending money to haul away abandoned property that landlords put on the street, so it instead passed an ordinance transferring ownership of the property to the landlord at the moment of eviction. Chagrined evictees sue. Fourth Circuit: As well they might. The city's shoddy notice requirements were unconstitutional.
  6. Searching for somebody who committed an assault, San Antonio police officer knocks on and opens a door to home and then quickly fires indiscriminately into a living room. Nobody in the living room resembles the description of the suspect, but one of them is fatally injured. Qualified immunity? Fifth Circuit (unpublished): If things happened the way the plaintiffs say, that was obviously excessive force.
  7. Allegation: Federal prisoner suffers multiple facial fractures playing softball; his face is visibly caved in, and a surgeon says he needs an operation immediately. Nevertheless, prison officials dither, the window for surgery closes, and he's left permanently disfigured. Can he sue the officials for deliberate indifference to his serious medical needs in violation of the Eighth Amendment? District court: Sorry, only the estates of inmates who die of untreated asthma can bring that kind of claim. Fifth Circuit (unpublished): Vacated. Bivens remedies ought to be narrowly construed. But not that narrowly.
  8. Allegation: Woman prays to God and God tells her to not get the COVID-19 vaccine. She then has an interview for a management position for a Michigan-based in-home medical care company. Things go swimmingly until she mentions this thing about not being vaccinated for religious reasons. The interview abruptly ends and no offer is forthcoming. Sixth Circuit: And that's enough to allege a Title VII violation.
  9. Man entering U.S. after trip abroad is stopped by customs agents at O'Hare International Airport. They then unlock and search the man's phone and uncover child pornography. Man, now charged with producing child pornography, files a motion to suppress, arguing the warrantless, suspicionless search of his phone violated his 4A rights. Seventh Circuit: Motion denied. "Brief, manual searches" of travelers' phones constitute routine border searches that do not require a warrant, probable cause, or reasonable suspicion.
  10. Confidential informant enters into sexual relationship with the Harrison County, Mo. sheriff, "trying to get a benefit for her brother and family with legal troubles." The relationship continues for six months, during which he provides drugs; when she ends things, he has her arrested. (He later dies by suicide after (sealed) criminal charges were filed against him.) Eighth Circuit (unpublished): She doesn't point to anything in the record showing coercion, so no claim against his estate and the county for violating her right to bodily integrity.
  11. Campaign committee for Congressman Steve King (R-IA), tweets out an image of "Success Kid" with the message "FUND OUR MEMES!!!" But Success Kid's mom registered the copyright of the viral photo in 2012. She sues King and the campaign for copyright infringement. A jury eventually holds that the committee was liable for infringement, awarding the minimum $750 in statutory damages. The committee appeals the damages and its denial of attorneys' fees. Eighth Circuit: This wasn't fair use, and fees are only available to prevailing parties, which you aren't.
  12. Ninth Circuit: "This [qualified immunity] case is unusual in that other officers on the scene contradict key facts asserted by the officer who used deadly force." (Ed.: Indeed, police usually get on the same page about that sort of thing.)
  13. True fact: The Ninth Circuit is so large that it hears cases "en banc" before the chief judge and 10 randomly selected active judges to sit on the "en banc panel"—which means the "en banc" court sometimes doesn't even include any of the judges who sat on the original panel. Anyway, here's an en banc opinion unanimously holding that the complaint in a challenge to California's A.B. 5 does not state an equal-protection claim, overturning an earlier panel opinion that held, equally unanimously, that it did.
  14. Los Angeles' school district implements a COVID-19 vaccine requirement for its staff. No exceptions! Except after it's sued, at which point it issues a "clarifying memo" that actually there's a testing exception. Until the lawsuit is dismissed and then it's no exceptions again. And then it's sued again. Two years later, on appeal, at oral argument the district's counsel vigorously defends the mandate at oral argument. But the argument doesn't go well. So the board rescinds the mandate 12 days later. Voluntary cessation exception to mootness? The Ninth Circuit thinks so. Also, on the merits, a preliminary injunction. Concurrence I: Maybe also sovereign immunity doesn't apply. Concurrence II: This is kind of like a refusal-of-medical-treatment case. Dissent: Can't we just assume the gov't loves us and was just reacting to the rapidly changing facts on the ground?
  15. Several Kappa Kappa Gamma members at the University of Wyoming sue the sorority for violating fiduciary duties by interpreting "women" to include "individuals who identify as women." The district court dismissed the case without prejudice, providing instructions on how to amend their complaint to make it viable. Instead, they appealed the dismissal. Tenth Circuit (unpublished): Can't appeal a non-final decision, and this was a non-final decision.
  16. Kansas officials: We need to conduct surprise, warrantless inspections of your dog-training facility to make sure you're doing things our regulations require like feeding the dogs once a day. Dog trainer: I'm pretty sure the people who pay me money to train their dogs are the ones who make sure I'm feeding their dogs properly. Tenth Circuit: How does a "surprise" inspection even discover whether you're feeding the dogs once a day? Once a day only happens once. Case un-dismissed!
  17. Muskogee County, Okla. employee claims he is fired in retaliation for his perceived speech about some matters of public concern and that he did not actually say the things he was fired for. County: Whoa, whoa, whoa. We didn't retaliate against you for exercising your constitutional rights. We retaliated against you because we thought you exercised your constitutional rights. Tenth Circuit: There's enough confusion in the law about how to evaluate merely perceived speech, as opposed to actual speech, that qualified immunity kicks in. Concurrence: I don't think this perceived/actual speech thing makes a difference here, we should just consider what the employer thought he said.

New case! Santa Clara County, Calif. officials have fined Michael and Kellie Ballard, the owners of a historic vineyard, over $100k for allowing a longtime employee and his family to live in a trailer on the 60-acre property. Though the trailer is safe, well-maintained, and not visible from surrounding properties, it is prohibited by the county code. So the Ballards have spent years and tens of thousands of dollars seeking permission to build a code-compliant home for the employee. But in the meantime, they have done a decent and honorable thing, refusing the county's demand to render the family homeless. Click here to learn more.