The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Dinosaur statutes, vote harvesting, and septic permits.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Last week, IJ's cofounder and former president Chip Mellor passed away after a battle with leukemia. Godspeed, Chip. You're a legend. Click here to learn more.
New on the Short Circuit podcast: What happens when the gov't claims it doesn't enforce the law? It avoids a lot of civil rights lawsuits.
- Economists like to say that incentives matter. Consider, for example, the incentives created by a prenup under which a man's wife receives $8 mil if he dies, but only $3.5k a month for 36 months if they divorce within a year. First Circuit: Murder-for-hire convictions affirmed.
- Can the State of New York assert parens patriae standing to sue a school district for its alleged failure to address repeated complaints of student-on-student sexual assault, sexual harassment, and gender-based violence and bullying? Second Circuit: It certainly can. Concurrence dubitante: That seems pretty screwy, but our whole jurisprudence of parens patriae standing is screwy, so the Supreme Court should clear this up.
- If one of your aims in life is to figure out whether a "subsection" is anything within a "section" or, alternatively, only the next-smallest-thing within a "section" but not something smaller, than that then your ship has come in. You'll also need to wade through whether a registered nurse must be part of certain investigations under the Medicaid Act, but otherwise your perusal of this Second Circuit opinion (no on nurses needed), including the dissent (yes on nurses needed), will be totally worth it.
- The Video Privacy Protection Act was passed in 1988 after a reporter dug into the video-rental history of Supreme Court nominee Robert Bork (and discovered it to be entirely non-salacious). But does this dusty law written in the era of VHS tapes have any continuing vitality? Second Circuit: "The VPPA is no dinosaur statute." Thus, a lawsuit alleging that the NBA violated a basketball fan's rights when it disclosed his video-watch history to Meta Platforms may proceed.
- In 2021, Texas enacts a law restricting paid "vote harvesting services," defined as "interaction with one or more voters, in the physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for a specific candidate or measure." The law is challenged in August 2021, but the district court doesn't get around to enjoining it until September 28, 2024, three weeks before voting begins in Texas. The state moves to stay the injunction. Fifth Circuit: And it is stayed. Under the Purcell principle, you can't mess around with things this close to an election.
- Man is celebrating his birthday in Detroit and listening to street musicians when a police officer tells him to move along. They argue for a bit, and the man is passively resisting arrest by hugging his girlfriend when the officer tases him without warning. Qualified immunity for excessive force? Sixth Circuit: Nope, it's "clearly established in this circuit that an individual has a constitutional right not to be tased when he or she is not actively resisting."
- Anticipating that the district attorney's office would announce it would not prosecute a police officer who shot a Black teenager, and in the midst of 2020 unrest over similar deaths, Wauwatosa, Wisc. officials impose a five-day nighttime curfew and arrest or ticket several protestors for violating it. Seventh Circuit: Which did not violate the First Amendment because it was a content-neutral measure appropriately tailored to the exigencies of the situation. (And NB: Don't ignore a district court when it tells you to be very careful in amending your complaint about whether you are suing gov't defendants in an official or individual capacity.)
- Hoax phone call brings police to Pasadena, Calif. home in search of a non-existent suicidal resident. Yikes! It turns out two federal law enforcement officers live at the home, and they file a complaint about the guns-drawn search, during which officers rifled through drawers and personal effects. In response, the police chief issues a press release that includes bodycam footage that purports to show his officers behaving appropriately, but that also reveals the location of the home. Federal officers: Which was retaliation and put our lives in danger—we had to move to a different city. District court: No qualified immunity. Ninth Circuit (unpublished): Qualified immunity.
- Plaintiff: Colorado law says I'm not allowed to build a septic tank without a permit, but my county says they won't give me a permit until I'm done building my septic tank! My 22 has been caught! I'm choosing a Sophie! I mean, this is unconstitutional! Tenth Circuit: That sounds like a crappy system, but that doesn't mean it violates due process.
- Did the Jenks, Okla. police department have jurisdiction to investigate a man for the 2018 murder of his ex's boyfriend on the Muscogee Creek Reservation? Tenth Circuit: Not after the U.S. Supreme Court's 2020 decision in McGirt v. Oklahoma, but no need to suppress the evidence because state officers acting in good faith could reasonably believe that they had jurisdiction to investigate in 2018. Conviction affirmed.
- Plaintiff landowner (and successful SCOTUS litigant) complains that the county's land-use ordinances make it impossible for him to develop his land, roughly 97% of which is underwater. Eleventh Circuit: Well, you've never asked them if you could build anything, so maybe swim on over with a variance application or something first.
- It's not an appellate case yet, but a friend of the newsletter informs us that this successful habeas petition from Puerto Rico—in a brutal triple murder from 1989—is a big story that has not yet hit the mainland, and some Google-translate-enabled sleuthing suggests that it will soon be headed to the First Circuit. With section headings like "Pandemonium at the Crime Scene" and "Investigators Contaminate, Discard, and Destroy Critical Evidence," this one's a doozy.
- And in en banc news, the Sixth Circuit will not reconsider its refusal to remove RFK Jr. from the Michigan presidential ballot. Judge Clay sharply concurs, calling the First Amendment argument presented by "Plaintiff and our dissenting colleagues" "completely fraudulent" in light of Kennedy's lawsuit in New York trying to remain on that state's presidential ballot. The dissenting colleagues, meanwhile, point the finger at the Michigan Secretary of State, who is alleged to have illegally placed Kennedy on the ballot, perhaps to draw votes away from a certain controversial major-party candidate.
- And in granted/vacated/remanded news, the Supreme Court has sent Villarreal v. Alaniz back to the Fifth Circuit for a rethink in light of (IJ mega hit) Gonzalez v. Trevino. After Ms. Villarreal—a citizen-journalist and known critic of law enforcement—asked a Laredo, Tex. officer to confirm facts that were part of a developing story, she was arrested for the crime of "soliciting" non-public information (a crime that's never been enforced in the decades it's been on the books). Back in January, the Fifth Circuit ruled 9-7 that the arrest was A-OK. (IJ filed an amicus brief urging a rethink. And, while we're tooting this horn, please don't fail to note that this is the second time in as many weeks that a bad First Amendment ruling has been GVR'd in light of Gonzalez.)
New case: Last month, Kalispell, Mont. city council members voted to shut down the Flathead Warming Center, a 50-bed homeless shelter located in a commercial area, as winter approaches. The shelter is clean and well-organized and has not been cited for any code violations. It only opened in its current location (which had been a vacant auto repair shop) after extensive work with elected officials and city staff. But visible homelessness has been on the rise in town (rents have nearly doubled in the last two years), and city leaders have decided to scapegoat the shelter. And though there is a process for dealing with problem properties, here the city council elected to ignore its own rules to revoke the shelter's permit—a permit that, once granted, runs with the land. Next week, a federal judge will consider a motion for temporary restraining order, so that the Warming Center can operate while the case proceeds and nightly temperatures fall below freezing.
