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
Classroom commandments, the FBI's Most Wanted, and a phone book artifice.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
This week, a federal judge granted IJ clients a temporary restraining order in our third case challenging new federal rules for money-services businesses along the Mexican border—rules that will drown honest people in paperwork and catch no drug traffickers. The scoreboard? Three cases, three TROs. Read all about it in The New York Times.
New on the Short Circuit podcast: Religious liberties that will delight your local pogonologist.
- The Local Resident Voting Rights Amendment Act of 2022 gives noncitizens the right to vote in D.C. local elections, so long as they've lived in the district for at least 30 days before the election. Seven citizens challenge the law, alleging that it unconstitutionally dilutes their votes. District court: You and everyone else. No standing. D.C. Circuit: Reversed. "The litmus test is not numerosity but concreteness." Vote dilution is a concrete injury, even if all voters suffer it.
- During lineup, Nassau County, N.Y. detectives put shooting suspect on two phone books to make him appear taller. They also cover his hair, which was braided—the perp's was too short to braid. The victim identifies him, and he spends nearly 10 years in prison before exoneration. Second Circuit (over a partial dissent): "With enough artifice and disguise, almost anybody may end up fingered." No QI for the detectives.
- Louisiana prison nurse diagnoses inmate with a muscle strain in his hip after he gets hurt walking around the yard. Holy freak accident! The hip is broken. District court: While the initial misdiagnosis can be forgiven, it's a problem that she falsely reported after a follow-up visit that he could walk, had full range of movement, and that his pain was improving. No QI. Fifth Circuit (per curiam): Reversed.
- Texas gasoline producers: Hey EPA, you've been "ignoring comments that flagged flaws" for your new fuel standards! EPA: Well, maybe we didn't fully respond but we kind of did. At least. A bit. Fifth Circuit: "[T]hat half-hearted defense is lipstick on a pig."
- Louisiana passes a law requiring all public schools to display the Ten Commandments in every classroom. An Establishment Clause violation? Louisiana: What?! We just have a sincere secular interest in ensuring that students appreciate this foundational document of our state and national gov't. Fifth Circuit: Funny, then, how all the law's sponsors talked about how the display would inculcate Christian religious values. Preliminary injunction affirmed.
- Lake County, Ohio detainee goes without his medication for a week, has a heart attack, dies. Sixth Circuit: No QI for prison nurse who didn't call his pharmacy to verify his prescriptions or take 10 minutes to get the necessary release form filled out. Dissent: Now everyone in CA6 who dies in jail because they were briefly without their medication has a constitutional claim.
- Allegation: When Michigan prisoner threatens to file a grievance against a guard, the guard says, "Do it, and I will f*** you up again, n***er." Is that an adverse action that would deter a person of ordinary firmness from filing a grievance? Sixth Circuit (unpublished): A mere threat (or even a mere threat coupled with spitting in an inmate's face) would be fine. But this inmate has alleged a pattern of racist remarks, physical harm, and threats of physical harm. Case undismissed!
- Wayne County, Mich. coroner's office identifies but does not contact family of deceased man because they "were backed up and didn't get to it." The family hires a social worker to find him, but by then the body is in an advanced state of decomposition. It's cremated against the family's wishes before they can verify it's him. Sixth Circuit: The Michigan Supreme Court has made some general statements about the next of kin's right to possess the body but nothing that would put these officials on notice this was unconstitutional. QI. And since the law wasn't clearly established, the county isn't liable either. [Click here for a lovingly-crafted podcast episode on why conflating municipal liability with the clearly established test is wrong, bad, and bad wrong.]
- Almost a decade ago, the Saginaw County, Mich. sheriff seized a bunch of guns as part of a domestic-violence case. Plaintiffs: But those aren't the defendant's guns! They're our guns, and we want them back. Sixth Circuit: Sure seems like the district court should at least figure out whether they're actually your guns. Back to the trial court with you!
- Can the state of Michigan take and keep anonymized baby-blood samples without the parents' consent? Or does it violate the Fourth Amendment? Sixth Circuit: It's fine, at least as to these particular plaintiffs, who neglected to prove that they had a possessory interest in the blood spots and data.
- In this series of unfortunate events, an Indiana woman gets a default judgment against her based on $500 in unpaid gym-membership fees. But wait! She then declares bankruptcy and the debt is discharged. But wait! The gym continues trying to collect. And the woman ends up getting arrested and spending a weekend in jail for failing to show up at a hearing in the collections case. Civil contempt on the gym's part? Big time, though the bankruptcy court only awards the woman half of her compensatory damages and attorney's fees because she was partly at fault for the screw-up, for failing to alert the state court to the bankruptcy discharge. Seventh Circuit: Halving the compensatory damages makes sense—that's Comparative Fault 101—but not necessarily the attorney's fees.
- Prison medical provider: Hey Seventh Circuit, that $3 mil settlement you mentioned in one of your opinions recently was confidential! Please issue a redacted opinion. Seventh Circuit: The $3 mil settlement that Wexford Health Sources, Inc., paid to Eric Ollison, the victim of an appalling failure to provide needed medical care that caused permanent brain damage and physical injuries? That $3 mil settlement? We're afraid that's a matter of public record.
- Prolific bank robber escaped jail in the 1980s, leaving a note that read, "Gone fishing." True to his word, he went fishing—in Guatemala. There, a decade later, a teenage neighbor scrolling the FBI's Most Wanted list espied the man's picture. He became the first Most-Wanted fugitive caught by the internet, and he's been behind bars ever since. But now he's an old man who wants out on compassionate release. Eighth Circuit: Too bad. He offended before November 1987, so he doesn't qualify for the First Step Act's expansion of sentencing reduction.
- On the one hand, this Eighth Circuit case—about whether a Minnesota statute regulating bullion dealers still violates the dormant Commerce Clause after the district court severed the parts that violate the dormant Commerce Clause—deals with pretty workaday legal principles. On the other hand, "bullion" is fun to say, so it's going in the newsletter.
- In which the Eighth Circuit considers whether the Arkansas Code Revision Commission exceeded the bounds of its powers by rewriting the legislature's ban on hemp (and says it didn't).
- The Ninth Circuit has upheld the constitutionality of quite an arsenal of gun control laws over the years. But what about a challenge to California's law forbidding more than one gun purchase a month? Ninth Circuit: Yeah, even for us that's a bit much.
- District courts in the Ninth Circuit condition admission on being a member of the bar of the state in which the district court is located. Lawyers for Fair Reciprocal Admission argues that this violates the Sixth Amendment, the separation of powers, principles of federalism, the Privileges and Immunities Clause, the Privileges or Immunities Clause, the Equal Protection Clause of the Fourteenth Amendment, the equal protection component of the Fifth Amendment, the First Amendment, the Full Faith and Credit Act, the Rules Enabling Act, Federal Rules of Civil Procedure 1 and 83, and procedural due process. Ninth Circuit: Truly a staggering array of arguments, all of which we reject.
- Argentina's 1930 coup d'état ushered in a horribly violent period with the military overthrow of a half dozen gov't's and tens of thousands of people being killed or disappeared. In what became known as the Trelew Massacre, military officers removed nineteen unarmed political prisoners from their cells in the early morning hours of August 22, 1972, shooting them, killing all but three. (The survivors were later disappeared during the Dirty War.) The military gov't sought to cover up the murders, claiming that the prisoners had been trying to escape, and sent one of the officers to the U.S. later that year to make him harder to find. He's been here since; he became a U.S. citizen in 1987, and successfully fought off Argentina's extradition requests to criminally prosecute him. Family members of some of the victims sue under the Torture Victim Protection Act, are awarded $24 mil by a jury. Officer: Should've sued me sooner. Eleventh Circuit: We need more facts.
Commendations to the Spartanburg County, S.C.'s sheriff's office, which has announced that it will not conduct its annual search-and-seizure blitz, "Operation Rolling Thunder," this year. Every year since 2006, the sheriff directed deputies to pull over as many motorists as possible and seize as much cash as possible, subjecting thousands of innocent (mostly out-of-state) drivers to pretextual, warrantless searches on I-85. Last year, IJ recruited a South Carolina attorney (with standing to pursue public-records litigation) to pry loose records about the stops, and my my jeezy petes, what we found. You could write a multi-part expose about it.
