The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Electronic monitoring, secret GPS trackers, and a speck in the recesses of interstellar space.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Bound By Oath podcast: In 1974, Congress added the law-enforcement proviso to the Federal Tort Claims Act to ensure that the victims of wrong-door raids by federal officers would have a legal remedy. On this episode, we talk with some folks who had a hand in getting the proviso passed into law, and we talk about the case of Martin v. United States, the wrong-door raid case that the Supreme Court will hear next week.
- Protestors at the Vermont statehouse sit in a circle, join arms, sing "social justice" songs, and refuse to leave. Cop applies pressure to one, triggering violent pain, during which she claims she was unable to stand. Three officers carry her out. District court: Qualified immunity. Second Circuit: Well, there's a case saying that if her side of the story is correct the tactic may have been unconstitutional. Dissent: I think the Supreme Court wants us to be more evasive, guys.
- A man riding his lawn mower was hit by a car and died in Dillon County, S.C. Insurance litigation ensued. Fourth Circuit: "What does it matter? A case but a speck in the recesses of interstellar space and in the four-plus billion years since our solar system's birth. What does it matter, this case deserted by both space and time?" Well, "[t]o be human is to live in the here and now."
- North Carolina appellate judge loses race for the state Supreme Court by fewer than 800 votes. He challenges the results in state court, arguing that ineligible votes were counted. After procedural hurly-burly that ends up with the case being divided between state and federal court, the state Supreme Court orders some ballots excluded and that other voters be given 30 days to cure deficiencies in theirs. The federal district court grants a partial injunction, allowing the state to recount the ballots, but not certify the results. Fourth Circuit (over a dissent): Don't do anything until we figure out the federal constitutional issues.
- Houma, La. police officers riddle a local man with nearly 20 bullets in his front yard after he flees from them (maybe while holding a gun?). Louisiana State Police are tasked with investigating the officer-involved shooting, and state troopers promptly get warrants to search the man's car and house (and his grieving wife's cell phone) on the asserted ground that they have probable cause to investigate the man for aggravated assault on a peace officer. Litigation ensues. District court: Um … the man was dead, so it's pretty obvious probable cause didn't support your investigating him for a crime. Fifth Circuit: Who could possibly say? Qualified immunity! Dissent: I mean, we could say, right?
- After shareholders sue private prison company CoreCivic, the parties enter a protective order, resulting in hundreds of documents being sealed from public scrutiny. The Nashville Banner intervenes to unseal the documents. Eventually, all but a few documents are unsealed. The newspaper appeals. Sixth Circuit: The district court needs to do a much better job explaining which parts of these documents, if any, should remain under seal.
- U.S. Sentencing Commission issues a policy statement that a non-retroactive change in the law can present an "extraordinary and compelling" reason warranting a sentence reduction if it results in old inmates serving much longer sentences than new inmates who committed the same crimes. Multiple inmates seek compassionate release under the new policy statement. Sixth Circuit (over a dissent): We've already interpreted the compassionate-release statute to provide otherwise, and it would be a separation-of-powers problem for the Sentencing Commission to overrule us.
- The Speedy Trial Act provides that criminal informations or indictments must be filed within 30 days after the defendant is arrested on the charges. Mexican national: Yes, my criminal information for illegal reentry was filed less than 30 days after my arrest, but it was filed more than 30 days after I was civilly detained by immigration authorities. And the civil and criminal folks were colluding together to circumvent my Speedy Trial Act rights. T'was a ruse! Seventh Circuit: Some courts have said there's a "ruse" doctrine along the lines you suggest, but even if that's a real thing, there were no shenanigans here. Conviction affirmed.
- Reno, Nev. mayor discovers secret GPS tracker on her car. Police learn it belongs to a PI and tell the mayor. She sues him, and the Nevada Supreme Court has since ordered him to say who paid him to place the tracker. But more importantly for present purposes, he sues the police claiming that his placing of the tracker was perfectly legal (it's since been outlawed) and disclosing his identity violated his First and Fourth Amendment rights. Ninth Circuit (unpublished): It did not.
- In exchange for pretrial release, San Francisco's Superior Court imposes restrictive electronic and warrantless monitoring of some criminal suspects. And the sheriff's office draws up the rules. Is that OK? District court: Lots of wrong here. PI is awarded. Ninth Circuit: Meh. There's much gray in the world. PI partly vacated. Dissent: "San Francisco's Superior Court abdicated judicial power."
- It is perhaps a good rule of thumb that an opinion that goes out of its way to make sure readers know a dog's name was "Herkimer" is going to deny qualified immunity to the police officer who shot Herkimer. And so it is in this Tenth Circuit opinion.
- Allegation: Colorado middle-school teacher invites student—who has never questioned her own gender identity—to an after-school art club. Student is surprised to arrive at what is actually a Gender and Sexualities Alliance meeting, where she is told that students who are uncomfortable with their bodies are more likely to be trans and is encouraged to come out as trans, which she does. Although the guest speaker warned students that it might not be safe to tell their parents about the meeting, she does. The parents sue the school district and its board of education, alleging violations of their parental substantive-due-process rights. Tenth Circuit: We're not sure what the scope of parental SDP rights are, but it doesn't matter because this wasn't official district policy.
- In Alabama, certain sex offenders cannot ever spend the night in the same home as a child even if the offense was years ago, they are reformed, and the child is their own. Eleventh Circuit: This violates the fundamental right to establish a home, as articulated in totally rad cases like Meyer v. Nebraska (1923).
- Jacksonville, Fla. prohibits erotic dancers under the age of 21, and those over the age of 21 must obtain a license to strip. Your summarist has been rebuked for appealing to readers' prurient sides, so you're on your own in crafting humor regarding this Eleventh Circuit decision concluding there's no First Amendment violation.
New TRO! Last week, IJ client Esperanza Gomez—who owns a small business in San Diego that provides check-cashing, money transfers, and money orders to working-class customers—launched a challenge to a new federal policy requiring money-service businesses in dozens of zip codes along the U.S.-Mexico border to report all cash transactions over $200 to the feds. (Typically, only transactions over $10,000 require such a report.) The paperwork burden is enormous. The privacy concerns are colossal. And a federal judge just said the whole thing might just be illegal. Click here to learn more.
