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
Frigid cells, raw sewage in cells, and expressive activity on public beaches.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Victory! Five years ago, a SWAT team blew up Vicki Baker's house in an attempt to apprehend a fugitive. But, sad news, last year SCOTUS declined to take up the question of whether destroying an innocent person's house is a Fifth Amendment taking requiring just compensation. (Two justices called for more percolation below.) But now! Thrilling news! This week, a federal court reentered judgment in Vicki's favor under the Texas Constitution. Click here to learn more.
New on the Short Circuit podcast: Scott Lincicome of Cato breaks down what's up at the Court of International Trade and IJ's Jeff Rowes breaks down the Texas attorney general.
- In 2019, New York decriminalized abortion, authorized them throughout pregnancy (limiting them after 24 weeks to circumstances with a non-viable fetus or when the mother's life/health is at risk), and eliminated fetal homicide from the state's criminal laws. This, claims a social worker and a viable fetus dubbed Baby Nicholas, violates fetuses' constitutional rights to life and equal protection. Second Circuit: No standing. The social worker has only speculated that, at some point in the future, an unidentified woman may seek to obtain an abortion of an unidentified fetus from an unidentified abortion provider—and that isn't enough. As for Baby Nicholas, the risk of harm is too attenuated to provide standing, whether for damages (a risk of future harm that never materialized) or injunctive/declaratory relief (insufficiently imminent harm).
- Atlantic City, N.J. fire dept. prohibits employees from having beards because they inhibit the seal on protective breathing masks used while fighting fires. But Mr. Smith, the technician who maintains the masks, says his Christianity requires a beard and that nobody in his role has had to do fire suppression for decades. Third Circuit (via shifting majority over two partial dissents): Unlike the more famous Smith, this Smith has a viable religious liberty violation.
- Fourth Circuit: Since 2005, when the Supreme Court admonished lower courts to quit dinging so many cases on Rooker-Feldman grounds, we haven't once found that a district court lacked subject-matter jurisdiction in a published opinion because of R-F. Oh snap! "That streak ends today."
- Norman Rockwell drew four panels of West Wing visitors waiting for an audience with FDR, which he then gifted to FDR's Press Secretary, Stephen Early. Early died intestate, leaving a widow and three children, who filled out the family tree with six grandchildren now sparring over the panels. Ride along with the Fourth Circuit in a decision that includes a reproduction of the panels, a family tree and accompanying drama, a history (back to the Romans) of the presumption that possession is nine-tenths of the law—and a conclusion (over a dissent) that the grandson who physically has the panels owns them.
- "As a matter of fact if it wasn't for [union organizers] trying to steal money out of your paychecks you would already have your raises." Protected speech? Or an unlawful threat of reprisal for labor activity? Fourth Circuit: Unlawful. So this Virginia trucking company must now bargain with the union that lost election by a vote of 65-30.
- The Fourth Circuit is absolutely not holding that the Trump administration has so thoroughly undermined the federal civil-service system that federal employees can bypass it in favor of suing directly in federal court. No, no. It is just remanding this case so the district court can decide as a matter of fact whether the Trump administration has so thoroughly undermined the federal civil-service system that federal employees can bypass it in favor of suing directly in federal court.
- Navy investigators get a warrant to seize—and only seize—a sailor's phone. They search it anyway and find the bad things, but the district court suppresses the evidence. On appeal, the gov't pleads "good faith" reliance on a defective warrant. Fourth Circuit (over a dissent): The warrant wasn't defective. You just didn't follow it. The good faith exception "is not a panacea that can save the Government when all remaining facts and law fail." Affirmed.
- In which a Fifth Circuit panel tussles with Justice Bushrod Washington and his 1820 opinion that a Pennsylvania law that mirrored a federal law (punishing militiamen who refused to report for federal service during the War of 1812) was preempted by the federal law.
- We'll admit that few people on the planet are currently thinking, "Man, I wish I could read a nuanced discussion of federal abstention doctrines and the difference between declaratory and injunctive relief," but most of those people probably read Short Circuit. For you, friends, this Sixth Circuit opinion.
- Allegation: Grand Rapids, Mich. police are on the lookout for an adult white woman with a ponytail who is suspected in a stabbing. They surround and draw their guns on an 11-year-old Black girl with no ponytail, whom they handcuff and place in a squad car while she screams and cries. Sixth Circuit: No qualified immunity for that. [Editor's note: Grand Rapids, you say?]
- Allegation: Green Bay, Wisc. corrections officers throw hunger-striking inmate in a cold cell overnight—where the temperature drops below freezing—without clothes, mattress, or blankets. Seventh Circuit: Until now, officers could have thought that was okay. QI here but not going forward. Partial dissent: We don't need a case on point; this obviously violates the Eighth Amendment.
- An Indiana man convicted of murdering his wife files a petition for post-conviction relief in state court, which proceeds to do absolutely nothing with the case for six years. Indiana: It was his own fault! And it was the pandemic! And it was a complicated case! Seventh Circuit: It was six years is what it was. His federal habeas petition can proceed.
- Allegation: Jonesboro, Ark. officer tases suspect who is scaling a fence. The man falls eight feet and is left paralyzed from the chest down. Eighth Circuit: A jury might think that's excessive force, but qualified immunity. There's no prior case on point.
- Perpetrators of cryptocurrency theft and extortion are convicted and ordered to pay restitution. Oops! The gov't requested restitution for the victims in amounts equal to the value of the crypto when it was stolen, not its much-higher value at the time of sentencing. District court: My hands are tied. Ninth Circuit: Not that tightly.
- Los Angeles officer is convicted of a federal felony for using excessive force, but the new administration petitions the court to reduce his offense to a misdemeanor. It does, and the officer is sentenced to four months. Can the victim oppose the reduction? Ninth Circuit: Our hands are tied.
- LAPD officer warns man to drop knife; he walks toward her. She shoots two rounds, dropping him. He tries to push himself up; she again yells at him to drop it and fire two more rounds. He falls and curls into a ball, and she fires a third volley of two rounds. The last bullet kills him. The Board of Police Commissioners deems the last volley a violation of policy because the man no longer presented a threat. Fractured en banc Ninth Circuit: No QI. After the second volley, he was on his back, well beyond striking distance, and writhing in pain. She had an obligation to reassess the situation before continuing fire, and a jury could find that her failure to do so was unreasonable. Partial dissenters: The whole thing was fast—six shots in six seconds—and the cop had no duty to reassess an armed and moving man.
- San Diego allows "expressive activity" on public beaches, but defines that term to exclude teaching yoga, which is prohibited. Ninth Circuit: Well, teaching is definitely speech, so that doesn't sound 100 percent correct.
- Federal prisoner in Kansas: For two days, I was forced to live in a cell covered by an inch and half of raw sewage. Tenth Circuit (unpublished): Sounds gross, but haven't you heard? Bivens is dead. Prisoner: That ruling essentially nullifies the Eighth Amendment. Tenth Circuit: Not so; it's sovereign immunity that does that.
- FBI agents pull up to a Navajo man's house and invite him into their police cruiser for 41 minutes of questioning, during which the man admits to bad things. But the agents didn't read him his Miranda warnings before questioning, so the district court suppressed the man's statements. Tenth Circuit: The man wasn't in "custody" and thus Miranda wasn't required: The cruiser was unlocked, the man was never told he must stay or talk, and he was never searched, touched, or restrained. Reversed and remanded. Dissent: This interrogation was the functional equivalent of an arrest, with the very same pressure tactics and police-dominated atmosphere described in Miranda.
- Pretrial detainee spits in Denver deputy's face. The deputy immediately punches the detainee, slams him and his wheelchair to pavement, and jams a knuckle (or thumb) into the detainee's mandibular nerve behind the ear. Tenth Circuit (unpublished): Can't do that, obviously. Denial of QI affirmed.
In 2019, Chicago police mistakenly raided the home of Anjanette Young, a social worker, on the say-so of an informant who didn't have his facts straight. In 2020, Louisville police killed Breonna Taylor, an emergency room tech, in a mistaken raid made possible by a detective who lied on a warrant application. This week, both Anjanette and Kenneth Walker, Breonna's boyfriend, filed a joint amicus brief in IJ's latest case, arguing that the Fourth Amendment's oath-or-affirmation requirement means warrants shall not issue without verification, accountability, or meaningful judicial probing. As have the National Police Accountability Project and a bevy of Fourth Amendment scholars and civil-rights litigators. Click here to learn more.
