The Volokh Conspiracy
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Short Circuit: A Roundup of Recent Federal Court Decisions
Crypto disclosures, high-risk stops, and protecting the curtilage.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Peter and Annica Quakenbush want to use their 20-acre property in rural Brooks Township, Mich. as a green cemetery and nature preserve, but township officials banned all cemeteries to stop them. This week, however, a state trial court noted that it's "Zoning 101" in Michigan that officials can't ban legitimate land uses—and ruled from the bench that the county is violating the state constitution. A rational-basis win at the motion-to-dismiss stage? Eureka! Click here to learn more.
- EPA economist has severe allergies. When a nearby coworker starts wearing cologne that causes reactions, economist asks to be moved from a cubicle to an office with a door. EPA refuses but says he can work from home. (Coworker also refuses to stop wearing cologne.) Economist says he doesn't want to WFH as he actually likes interacting with colleagues (just not with cologne). District court: EPA did enough. D.C. Circuit: Lots of facts here, talk to a jury. Dissent: WFH sounds pretty good to me.
- "Although Fresh Line chickens and turkeys, according to allegations we accept as true, were raised strictly indoors, the approved product labels depict birds freely roaming outside a barn." Does a member of the Animal Legal Defense Fund have standing to sue the Department of Ag and challenge its approval of this feathered propaganda? D.C. Circuit: The member alleges the label is misleading, but that means she already knows it's misleading. So she won't be misled. (And who cares what anyone else thinks.) So she doesn't have an injury. Case dismissed.
- A century ago, when zoning laws were shiny and new, they were a favorite tool for targeting racial minorities. City of Cromwell, Conn.: As a nation, we've evolved since then. What we like to use our zoning laws for now is targeting people with mental-health disabilities. Cool? Second Circuit: Decidedly uncool―and unlawful under the Fair Housing Act. But the mismatch between the jury's award of $181k in compensatory damages and its award of $5 mil in punitive damages was so large as to violate the Due Process Clause's limit on excessive punitive damages. The punitive damages are reduced to $2 mil.
- Driver pulls over to fix his malfunctioning GPS; a Waterbury, Conn. police officer knocks on the window, and driver hands over his driver's license and gun permit and tells officer there's a legal pistol in the driver's side door. Yikes! Officer violently drags him out of the car, handcuffs him, detains him in squad car for half an hour, and searches the driver's car and trunk. Second Circuit: Having a lawful gun doesn't give police carte blanche to arrest you for over half an hour and ransack your car. No qualified immunity
- One man is murdered and another grievously wounded in Lebanon, Penn. in drug-money dispute. Three people were seen leaving the scene of the crime; one pleads guilty to a 20-count criminal information, naming one of the others seen as a co-conspirator. At the latter man's trial, the court reads aloud to the jury the entirety of the former man's criminal information—without having him testify—and he's convicted, sentenced to life. Third Circuit: A clear violation of the Confrontation Clause. Habeas granted.
- The first rule of ex post facto challenges to sex-offender registration and residency requirements is that the sex offenders lose. Fourth Circuit: Applying that hoary legal principle here, we conclude that the sex offenders lose.
- Circuit split alert! In July, the Fourth Circuit (over a dissent) held that "geofence" warrants ordering Google to provide law enforcement with information about every accountholder who enters a particular area in a particular time period are totally cool under the Fourth Amendment. But lo! A mere month later, here comes the Fifth Circuit to tell us that these same warrants are, in fact, totally bogus under the Fourth Amendment! This problem can only be solved by SCOTUS (or by Google, which has apparently changed the way it stores data to put a stop to these warrants no matter what the courts say).
- This Sixth Circuit opinion is an absolute banger for anyone who's a huge fan of the Social Security Administration's org chart or who gets super-excited when federal courts reaffirm that the Appointments Clause of Article II doesn't really pose any obstacle to federal agencies' doing whatever they want so long as the nominal agency head says the right magic words. The slim minority of you who fall into neither category can probably give it a miss.
- Cleveland, Ohio woman is found in a park in 1974, fatally stabbed. Near her body is a newspaper with a bloody palm print and a bloody pillowcase from a nearby hotel, both with ties to another man. Despite no physical evidence linking the woman's husband, he's convicted, spends 46 years in prison—and is exonerated in 2021. (He died six months after his acquittal.) He sues the detectives' estates (they've since died) and the city of Cleveland. Sixth Circuit: He's too late suing the detectives' estates, but a jury should have the chance to consider whether evidence was unconstitutionally withheld. Partial concurrence/dissent: The claims against the detectives' estates should go forward, too.
- Under federal law, anyone who receives more than $10k in cash in the course of their trade or business has to make certain disclosures to the gov't. In 2021, Congress amended the law so that "cash" now includes "digital assets," such as cryptocurrency and monkey pictures. Crypto folks sue. Sixth Circuit: And their enumerated powers, Fourth Amendment, and First Amendment claims can go forward. But their vagueness and self-incrimination claims are not yet ripe.
- Security guard at a Cincinnati public library posts an insensitive meme to his personal Facebook page concerning the BLM protests. He takes it down less than 24 hours later, but some of his Facebook friends who work with him at the library complain. He's fired from his job. He sues for First Amendment retaliation: Sixth Circuit: He spoke on a matter of public concern, and nobody could think that his post would actually disrupt the library. He wins. Dissent: How are we supposed to weigh whether his interest in speaking outweighs potential disruption at work? We should defer to the library.
- After a warning, Barron County, Wisc. officer lets canine loose into home to apprehend man wanted on several outstanding arrest warrants for violent crimes. The dog locates the man, and the K9 officer shouts that he'll call off the dog if the man shows his hands. Amid tortuous screams, the man explains he can't do that because of the dog trying to tear one of his arms apart. After about 2 minutes the dog is successfully commanded to stop. The arm is now severely disfigured. Qualified immunity? Seventh Circuit: Too many disputed facts to assess at this stage. Get thee to a jury.
- You might think two affected firearms industry manufacturers, a gun association, and an individual are enough to make a federal case out of a new ATF rule reclassifying pistols equipped with "stabilizing braces" as "short-barreled rifles." But apparently 25 states—fully half of the Republic—needed to be plaintiffs as well. And their AGs can now ring the register (and prepare talking points for future gubernatorial runs) because their additional presence seems to have been just enough to convince the Eighth Circuit to find the rule likely is arbitrary and capricious under the APA and therefore is preliminarily enjoined. Dissent: A judge in Texas already vacated this rule so how can we enjoin it?
- Man in Columbia County, Ark., wanted for a murder earlier that evening, is said to be driving a white SUV. Officer finds a matching SUV, blocks the vehicle into its parking space, gets out and asks the driver his name. Which—in an unusual tactic for a wanted murderer—he honestly provides. However, he then puts the SUV in reverse, slamming into the cop car, and is about to drive over the curb when the officer shoots him dead through the window. His estate sues for excessive force. Eighth Circuit: Dude, he just murdered someone. Qualified immunity. Dissent: The facts of the encounter are genuinely disputed.
- Iowa passes law requiring school libraries to remove any books that are not "age-appropriate" and prohibiting any "program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six." Lawsuits are filed and the law is enjoined. Eighth Circuit: Enjoined a little too hastily. Why don't you take another look at it and hew a little closer to the Supreme Court's standards.
- Conservation group sues Minnesota, saying the state isn't doing enough under the Endangered Species Act to protect the threatened Canadian lynx. Minnesota agrees to a consent decree that imposes regulations on trappers to prevent harms to the lynx. But wait! Three pro-trapping organizations intervene and object to the consent decree. Eighth Circuit: The decree seems fair and reasonable to us and doesn't appear to violate state administrative law.
- Los Angeles police looking for a stolen limo encounter a limo driving by, the license plate of which doesn't match the vehicle because of DMV error. Yikes! Escalating rapidly, roughly a dozen officers (with a helicopter assist) conduct a "high-risk" stop, swarming the innocent and terrified occupants—a mom and two teens. When the limo occupants sue, alleging excessive force, the district court grants qualified immunity to the individual officers, and then a jury rules for the city on the remaining claims against the LAPD. Ninth Circuit: It was clearly established that reasonable suspicion a vehicle is stolen isn't a constitutionally sufficient basis to go all Heat on the car, so plaintiffs get another crack at their claims against the individual officers. But jury instructions were OK, so verdict for the city affirmed. Dissent: Given how the jury was instructed, it's clear they didn't think the officers acted unreasonably and would have rejected the individual-officer claims too, so any qualified-immunity error was harmless.
- With no warrant, Los Angeles police snoop onto driveway ("curtilage") and spot an uncle handling meth in his nephew's garage. Drug convictions ensue for both. They push for post-conviction relief, claiming their lawyers messed up by not raising the obvious: Police can't snoop onto curtilage without a warrant, so the evidence should've been tossed. Ninth Circuit: Nephew's lawyer dropped the ball since the police had no right to invade his curtilage. But the uncle? It's not his house. Concurrence: Few things are more serious than a (literal) overstep of gov't power. Protection of curtilage, tracing back to English common law, is an ancient right deeply rooted in our history.
- Children's Health Defense, a nonprofit founded by RFK Jr., wants to distribute information via social media about what it views as the dangers of vaccines. But Meta Platforms, operator of Facebook, adds warnings these views are, in fact, bunk. The nonprofit sues, alleging that Meta violated their First Amendment rights and even effectuated an unconstitutional "taking" by removing their donation button. Ninth Circuit: But Meta is not the gov't, so all of these wacky claims fail. Dissent: All of the wackiest claims fail, but there are enough allegations that Meta was acting on behalf of the gov't that the First Amendment claims should go forward.
- Mexican national is connected to the fatal shooting of a Border Patrol agent in the United States. Seven years later, FBI agents interrogate him in a Mexican prison. After reading him his Miranda rights, they hit him with everything: good cop, bad cop; your friends told us a different story; we're not charging you with anything. He doesn't bite. Then his lawyer says, you were just in the mountains looking to rob drug dealers, and that's not a crime, so tell these guys what they want to know. So he does. Ninth Circuit: That is extremely ineffective assistance of counsel. Dissent: We should make this guy who admitted to participating in the murder of a federal agent work at least a little harder before we vacate his sentence.
- Mexican national—who had previously been removed from the country—reenters, gets caught, and is charged with illegal reentry. His lawyer collaterally challenges his initial removal, arguing that he has major brain damage and unknowingly waived his right to counsel in the first case because when he was told the gov't would not pay for his attorney and he would have to "hire" one, he thought that precluded him from getting a pro bono attorney. Ninth Circuit: The waiver was invalid. Dissent: Oh, come on. He was expressly told about the availability of pro bono counsel.
- Man abducts pregnant woman from her home at gunpoint, forces her to steal stacks of money from the bank where she works. The man faces kidnapping and robbery charges, along with a solicitation of murder charge based on a jailhouse informant, who said that the man asked him to kill the woman, her husband, and baby for $10k. The informant also testified that his motives were altruistic and he'd received no parole consideration—a lie. Ninth Circuit (over a dissent): And that lie results in a habeas grant.
- And in amicus brief news, IJ—and some friends—are asking the Supreme Court to hold that a civil rights plaintiff is a "prevailing party" when they win a preliminary injunction and then the gov't capitulates, by changing the law being challenged or otherwise mooting the case before a final judgment on the merits. Last year, the Fourth Circuit—in line with every other circuit—ruled that indeed they are, which entitles them to attorneys' fees under Section 1988. And that's a holding the Court should not disturb.
- And in en banc news, the Eleventh Circuit will reconsider its decision that the Houston County, Ga. sheriff's office is violating Title VII by offering health insurance that lacks coverage for sex changes.
New case! Indiana's state motto is "The Crossroads of America," and for years Indiana police have exploited one of the nation's biggest shipping hubs to profit from that status―plucking parcels en route from the East Coast to the West, subjecting them to K-9 sniffs, opening them, and, if they contain money, suing to forfeit the money in Indiana state courts. What violation of Indiana law supports these forfeitures? Indiana doesn't say. Since 2022, the state has sued to forfeit more than $2.5 mil in this way. Now, IJ has teamed up with a small California jewelry company (whose money was recently snatched up in Indiana) to file a class-action lawsuit and put a stop to Indiana's money grab.
New case! Friends, do you love meat but have ethical or environmental qualms about the more than 34 million cows and 8 billion chickens killed annually to satisfy America's appetite for it? Then you're the sort of consumer UPSIDE Foods wants to appeal to with cultivated chicken, which is grown from real chicken cells without the need to kill animals and has been greenlit for interstate sale by the FDA and USDA. The state of Florida, however, is not a fan: At the behest of in-state agricultural interests, it recently banned cultivated meat from the state. But Florida can't wall itself off from the interstate market just to please favored in-state interests. So this week IJ and UPSIDE joined forces to challenge this protectionist ban. Learn more here.
