The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Aspiring thieves, conquesting marketers, and derivative sovereign immunity.
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, it was unreasonable and unconstitutional for a SWAT team to raid 593 Eighth Street when it had a warrant to raid 573 Eighth Street, and indeed the SWAT commander concedes as much. (What else can you do when you were meant to look for contraband in a garage, and the house you raided doesn't have a garage?) Sadly, however, the Fifth Circuit ruled that the commander's "deficient" efforts to identify the correct house were enough to get him qualified immunity. In other words, he was reasonably unreasonable. We're asking the Supreme Court to step in. Click here to learn more.
New on the Short Circuit podcast: Our biennial election law special! Foreign contributions, voter rolls, "ballot harvesting," the right to not run for office, and "learned in the law."
- Federal law prohibits entering "a restricted building or grounds," a term that is defined to include any restricted area "where the President or other person protected by the Secret Service is or will be temporarily visiting." January 6 protestor convicted under the law argues the gov't was required to show not only that he knew the area was restricted, but that he knew it was restricted because VP Mike Pence was there. D.C. Circuit: Everything points to knowingly trespassing being enough. Dissent: Everything points to knowingly trespassing not being enough.
- Puerto Rico officials sue players in the pharmaceutical industry, alleging they illegally conspired to jack-up insulin prices. They file in the "Court of First Instance," the territory's equivalent to a state court. Pharma bros remove to federal court with the story that they were just doing what the feds told them to do, so the federal officer removal statute applies. First Circuit: This is a hard issue with a deepening circuit split (due to a bunch of similar pharma lawsuits), but we're going with removal was OK as the feds are behind a lot of this.
- In New York, applicants for concealed carry licenses must be of "good moral character." And they must reveal their social media activities and any "other information" that's "reasonably necessary and related" to licensing officials. Do these requirements have a sufficient basis in the nation's historical tradition of firearm regulation? What about penalties for bearing arms on private properties that are open to the public and lack signage indicating that guns are allowed? Over the course of 246 pages, the Second Circuit preliminarily enjoins the social-media requirement and the private-property provision.
- In Old Forge, Penn., a middleman who owes $400k from a prior mail fraud conviction hatches a new scheme: He and his friend, the borough president, will receive bribes from a scrapyard owner in exchange for a favorable result in the owner's zoning litigation. The middleman pitches his plan to the scrapyard owner—who surreptitiously records their conversation and contacts the FBI. The scrapyard owner makes several bribery payments to the middleman and the borough president, including with FBI prerecorded funds. Was the middleman a victim of entrapment? Third Circuit: The middleman hatched this scheme; the FBI merely helped him complete it. Entrapment that is not. Convictions affirmed.
- Participant in the notorious "Unite the Right" rally in Charlottesville, Va. claims police failed to protect him from hostile counterprotestors. Fourth Circuit: Yes, heckler's vetoes are bad, and the police cannot disband a protest just because of hostile onlookers. But to invoke the First Amendment you have to yourself remain peaceful. Which . . . you guys did not do.
- Twitter sues Media Matters, alleging that the group portrayed the social media platform as "dominated by neo-Nazism and anti-Semitism," which drove advertisers and users away. In discovery, Twitter seeks all of Media Matters' donors. Media Matters argues that that information is privileged under the First Amendment, but after the group fails to search for the documents or produce a privilege log, the trial court grants a motion to compel. Fifth Circuit: Stayed pending appeal. They definitely should have complied with the judge's instructions, but the requests are disproportionate to the needs of the case in any event.
- Ferguson, Mo. police officer approaches parked car with tinted windows, argues with the driver, arrests him, and searches the car. After all charges are dropped, driver sues for First and Fourth Amendment violations. Eighth Circuit: Qualified immunity bars most claims because there was arguable probable cause that the driver committed several offenses, but a First Amendment retaliation claim should go to a jury based on allegations that the officer pulled a gun and said, "I can shoot you right here" and "nobody will give a s**t" after driver asked for officer's name and badge number. Dissent: I think the better explanation than retaliation is that the driver removed his hands from the steering wheel to grab his phone.
- Under federal law, a noncitizen may apply for asylum if he is "physically present in the United States" or "arrives in the United States." Can the gov't prevent noncitizens from applying for asylum by stopping them before they cross the border? Ninth Circuit: Nope, being right at the border and presenting oneself as an asylum applicant counts. Dissent: "In" the United States means inside the border, as the Corpus of Contemporary American English confirms.
- Conquesting "is a common internet marketing tool by which companies promote their services to potential customers who might be searching for a competitor." And that's exactly what one Arizona personal injury law firm did when it paid Google to make its ads appear when users searched a rival law firm's name. But was it a Lanham Act violation? Ninth Circuit: Not this time.
- An aspiring thief and his co-conspirators plan a complex computer chip heist from a Sacramento, Calif. business. One team planned to obtain the alarm codes from the business owner's home, while the other team (including the aspiring thief) would use those codes to access the building with the computer chips. Yikes! After several hours of torture, the first team discovers that the "owner" is, in fact, a handyman who knows nothing about alarm codes, and the second team abandons the heist. The aspiring thief is convicted of Hobbs Act conspiracy but argues that he was entitled to a sentence reduction because he was not "about to complete" all the planned acts. Ninth Circuit (over a dissent): The plan was nearly complete and nothing "stood in the conspirators' way once they obtained the alarm codes."
- Detainees at a private immigration detention facility in Aurora, Colo. are required to take on cleaning duties (under threat of punishments like solitary confinement) and are offered a "Voluntary Work Program" that pays only $1 a day. They sue, alleging that violates the federal Trafficking Victims Protection Act and state unjust enrichment law. Facility says it has sovereign immunity derivative of the federal agency with which it's contracted. Tenth Circuit (unpublished): Maybe, maybe not, but we don't have jurisdiction to decide that before a final judgment because sovereign immunity is too closely tied up with the merits.
- Defendant: The criminal case against me for trying to overturn the 2020 election results should be removed to federal court because I used to be a federal official! Eleventh Circuit: "Used to be" doesn't cut it, so back to state court you go. Concurrence: Also, "overturning election results" wasn't exactly in your federal job description, buddy.
- Eleventh Circuit, again: And that goes double for people who only "used to be" nominated as presidential electors. Concurrence, again: Also, you guys weren't even real electors in the first place. You were pretend electors, and you can't pretend your way into federal court.
- After Castro seized all U.S.-owned property in Cuba, Congress enacted the Helms-Burton Act, enabling former property owners to sue those who "traffic" in the confiscated property. U.S. corporation Havana Docks sues several cruise lines for trafficking docks the corporation built in Havana and held in a 99-year "usufruct," a right to use gov't-owned property common in civil law jurisdictions (ask a Louisianian). Eleventh Circuit (over a dissent): The usufruct would have expired in 2004, so the cruise lines' use of the docks later wasn't trafficking.
- And in en banc news, the Ninth Circuit will not reconsider its (unpublished) opinion ordering the trial judge to reconsider whether to grant leave to amend in a challenge to Oregon's 90-day signature-gathering deadline for recall petitions. Judge Bumatay, joined by three other judges, would have taken the case en banc to clarify that the plaintiffs should have lost even harder than they did the first time around.
- And in state supreme court news, North Carolina's high court has revived IJ's challenge to the state's certificate-of-need law, which creates monopolies for certain medical services and prohibits our client, a highly qualified ophthalmologist, from performing eye surgeries in his state-of-the-art facility at prices that are thousands of dollars less than what the local hospital charges. Onward! Click here to learn more.
- And in cert denial news, the U.S. Supreme Court has declined to decide whether sham takings, in which gov't officials take property out of spite rather than for any public use, violate the Fifth Amendment. Three justices voted to hear the case, wherein Southold, N.Y. officials voted to use eminent domain to seize a vacant property (which they intend to leave vacant) rather than allow IJ's clients to build a hardware store that meets all zoning and other regulatory requirements. Click here to learn more.
Last year, Norfolk, Va. officials installed 172 automatic license plate reader cameras around the city, which (very nearly) track all of everyone's travel by means of a "Vehicle Fingerprint" generated by the contractor that runs the system, Flock Safety, Inc. All footage is retained for 30 days, and during that time any Flock subscriber with access can log in and track any vehicle without a warrant, probable cause, or any judicial oversight. And because Flock pools its data in a centralized system, police can track drivers across the country, not just in any particular jurisdiction. Which, in some of its particulars, violates the Fourth Amendment, so this week IJ teamed up with two Norfolk-area residents to challenge the dragnet. Click here to learn more.
