The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Ivory Law, non-essential supplies, and medically induced comas.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Nearly a decade ago, New Mexico all but eliminated civil forfeiture, ending the practice of taking people's stuff without convicting them of a crime. And then what happened? Did the state descend into lawlessness? On the contrary, crime rates were not impacted. So says a peer-reviewed study newly published in the Criminal Justice Review that used nine years of monthly data and compared against control states. Henceforth, policymakers can rest easy knowing that if they do the right thing and nuke civil forfeiture into the sun, the only thing they'll be doing is protecting civil rights.
- California environmentalists sue the FAA and the National Park Service, disputing whether the agencies appropriately followed regulations promulgated by the Council on Environmental Quality. D.C. Circuit: Twist! The CEQ doesn't have the power to issue regulations—50 years of practice notwithstanding—because it was created by executive order, not by Congress.
- Puerto Rico shuts down most businesses in March 2020, exempting those selling "essential supplies." Wal-Mart, Costco, and others remain open and, allegedly, continue selling "non-essential supplies" such as, well, everything in the store. The gov't does nothing to stop them. A group of competing businesses who were shut down sue the big-box chains, claiming unfair competition. District court: Class certification denied, and there is no cause of action. First Circuit: Remanded back to Puerto Rican "state court." Dissent: I agree, but we should have granted Costco's motion to sever.
- American Airlines and JetBlue try to merge their services for flights in and out of Boston and NYC. But is this a "restraint of trade" under the Sherman Act? District court: After sitting through a month-long trial where I have to put up with biased "experts" and thousands of pages of evidence I'm going to say it is. First Circuit: And no clear error in applying the rule of reason.
- New York's State Ivory Law restricts the sale of ivory items and does so in ways that are more restrictive than the sales permitted under the federal Endangered Species Act. It also prohibits licensees from physically displaying for sale any ivory item that is not authorized for sale in New York. Antique dealers: The law is preempted by the Endangered Species Act, and the display restriction violates the First Amendment. Second Circuit: Having parsed the difference between the words "exemption" and "exception," we conclude that the law is not preempted. But its display restriction does violate the First Amendment. Dissent: The law absolutely is preempted.
- North Carolina requires federal-office candidates to disclose felony convictions on their ballot applications. Prospective candidate: This violates the Qualifications Clause and the First Amendment! Fourth Circuit: No. Checking a box marked "felony" doesn't impose an unconstitutional "qualification" for candidacy. Disclosing this simple, public fact isn't 1A-violating compelled speech either. (Oh, and how about a breather from five years of nonstop election challenges?)
- In 2023, disgraced former lawyer Alex Murdaugh was found guilty of murdering his wife and son following a high-profile trial. If that weren't enough, Murdaugh is also alleged to have stolen nearly two million dollars from his personal injury clients with the help of a bank CEO. During the banker's fraud trial, the judge removed a juror who privately expressed anxiety due to other jurors' "reactions to my decision." The banker was then convicted on all counts. Did removing the anxious juror violate the banker's rights under the Fifth and Sixth Amendments? Fourth Circuit: Sure did. The banker had the right to be present in the juror's interview, and there's a substantial possibility that removal was based on the juror's view of the case. Convictions vacated and remanded for a new trial.
- Allegation: After wearing MAGA hat and a Ted Cruz T-shirt, teen suffers years of intense bullying by students and staff at Austin, Tex. public schools. He sues the school district under Title VI for being deliberately indifferent to racial harassment. District court: He was bullied for his politics, not his race. Case dismissed. Fifth Circuit (en banc, by a vote of 9-9): Affirmed. Dissent: He was bullied for multiple reasons, and being white was one of them.
- Ohio man is arrested and booked after failing to appear for a court hearing. Following his intake screening, he's placed on an opioid-withdrawal protocol but not a Xanax-withdrawal protocol, despite his having identified Xanax as a drug for which he had a prescription. He goes into severe withdrawal, becomes delusional, and is eventually roughed up and restrained by jail officials. He sues jail officials for deliberate indifference. Sixth Circuit (unpublished): Qualified immunity for everyone. Sure, this guy said he took Xanax, but people say all sorts of things that may or may not be true. Dissent: This should have gone to a jury.
- Michigan woman, inebriated but calm and steady on her feet, sets out from home to locate her son at the site of a car crash less than a half mile away. Police officer, convinced that the woman was the driver, arrests her for disorderly conduct. She's acquitted at trial and sues the cop. Sixth Circuit: There was no probable cause for the arrest, but qualified immunity anyway. Concurrence: We shouldn't decide the probable-cause question; we should just skip straight to QI.
- In Indiana, it's illegal for physicians to treat gender dysphoria by altering a child's sex characteristics through medication or surgery. District court: Which likely violates, among other constitutional protections, the Equal Protection Clause. Preliminary injunction issued. Seventh Circuit (2-1): Nay. The law is subject only to rational-basis review, which it likely passes. (Ed. ::sigh:: let us take the liberty of proposing an amendment to page 15: it's almost certainly supposed to be "baring" breasts, guys, not "bearing" them.)
- When someone says "we had a 40-year business relationship but somehow never got around to writing it down in a contract," you might suspect that Jägermeister was involved in their decision-making process, which, in this Eighth Circuit case, is quite literally true.
- Allegation: In 2014, after prison staff ignored his declining health, Missouri inmate suffers multi-organ failure. He's placed in a medically-induced coma for a month and now requires dialysis three times a week. (Family members are willing to donate a kidney, but the warden refuses to allow it, saying, "He belongs to me.") He sues. Prison: Oh, but you had to file a grievance within 15 days of your initial medical emergency. And while we acknowledge you were in a coma, you had to file a late grievance when you were recapacitated. Eighth Circuit: Case undismissed. The prison's grievance policy did not allow any late filings.
- Allegation: Kansas man finds errors in his credit reports, leading to embarrassment and a lost job opportunity. He sues the US Dept. of Ed. and a Missouri credit agency under the FCRA after they fail to correct his info. USDE: Sovereign immunity! Missouri agency: Eleventh Amendment immunity! District court: Immunity for both. Tenth Circuit: SCOTUS just said that the FCRA waives sovereign immunity. As far as the agency, it ain't an arm of the state. Undismissed.
- Seeking to promote voting by mail, nonprofit starts sending partially completed vote-by-mail forms to Kansas voters. Seeking to curtail voter confusion and errors on forms, Kansas outlaws sending partially completed vote-by-mail forms. Nonprofit sues, alleging the restriction violates their First Amendment rights. Tenth Circuit: This is a content-based regulation of speech, but one of the increasing number of content-based regulations that we think escape strict scrutiny because it's pretty much harmless. (To this summarist, this seems more like a content-neutral time, manner, or place regulation, which would reach a similar result with less violence to the jurisprudence.)
- Without turning on their emergency lights, Brevard County, Fla. police follow car they think is stolen but is not. The 16-year-old driver stops, and officers—in violation of policy—get out of their cars with guns drawn. The teen drives on, and an officer shoots and kills him and also the 18-year-old backseat passenger. Plaintiffs: At no point was the officer in danger. The teen was trying to go around him, and indeed did. Shooting through the windshield was unconstitutional, and so was shooting through the driver-side window as the car went past. Eleventh Circuit: The officer might have reasonably believed he was in danger. (Video here.)
- In 2021, Project Veritas was suspended from Twitter. CNN reports that the suspension was for promoting misinformation. Project Veritas demands a retraction—the suspension was actually for doxxing. CNN says it's close enough, and Project Veritas sues for defamation. Eleventh Circuit: And there's enough here to get past a motion to dismiss. Concurrence: "If you stay on the bench long enough, you see a lot of things. Still, I never thought I'd see a major news organization downplaying the importance of telling the truth in its broadcasts. But that is what CNN has done in this case."
- And in en banc news, by a vote of 8-9, the Fifth Circuit will not reconsider its (unpublished) decision that a street preacher cannot challenge future enforcement of a Brandon, Miss. ordinance because he has been convicted of violating it in the past. (The ordinance bans public demonstrating near certain live events.) Dissentals: Heck, we can do better than this.
- And in cert denial news, we're sorry to say that the Supreme Court took a pass on Martinez v. High, in which a Clovis, Calif. officer disclosed a confidential domestic violence complaint to subject of the complaint, who then inflicted horrific sexual and physical abuse on the victim. According to the Ninth Circuit, a reasonable officer might not have known not to do that. Silver lining: The panel did clearly establish that officers should not do that.
New case! According to the Texas Tribune, there is a staggering shortage of social workers in the state. Indeed, 74 counties lack any licensed master social workers. And IJ clients Katherin Youniacutt and Tammy Thompson each want to become a licensed master social worker and have spent years meeting all of the state's education, exam, and practice requirements (and have earned glowing reviews from supervisors and colleagues). However, the legislature recently banned anyone with a conviction for felony assault from becoming a social worker, and Katherin and Tammy have such convictions — from the mid-2000's while still in the grip of addictions they have long since overcome. Fortunately, the Texas Constitution protects the right to earn an honest living free of unreasonable restrictions, which old and irrelevant convictions surely are. This week, Katherin and Tammy joined with IJ to file suit, asking for the courts to strike down the law and return to the previous status quo where the state's licensing board was free to consider evidence of rehabilitation. Click here to learn more.
