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
Top Gun, official acts, and atrial fibrillation.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Hot dang! This week, the Arizona Supreme Court agreed to hear an IJ economic liberty case that asks whether the state constitution protects the right to earn an honest living free of unreasonable, arbitrary, or oppressive laws. (We say yes.) Click here to learn more about the case.
Oh no! The Dept. of Homeland Security has proposed a new rule allowing them to require DNA of citizens and non-citizens alike, and then store it indefinitely for law-enforcement use. Click here for IJ's comment explaining how that would violate the Fourth Amendment.
And! Apropos of nothing, IJ client George Retes is featured on The Atlantic's Autocracy in America podcast, relating how ICE agents tear gassed him, pepper sprayed him, dragged him out of his car while yelling conflicting commands—and then held him incommunicado for three days before releasing him without charge. (And then DHS lied all about it on Twitter.)
New on the Short Circuit podcast: What do Joan of Arc's trial and qualified immunity have to do with each other? IJ's Tahmineh Dehbozorgi explains.
- What is an "appropriations rider" passed by Congress? First Circuit: A law. So you have to follow it, even if you're the NIH.
- Baltimore SWAT officer shoots mentally ill veteran in the back, killing him. Officer: Because he was running at me with a machete. Fourth Circuit: Denial of QI affirmed. To trial this must go.
- Allegation: Baltimore officer is forced to resign after it's determined that she lied about punching a woman at a nightclub. But she presents a list of other officers who were not fired for similarly serious breaches, including an officer involved in the very same nightclub fight (on the other side) who also lied about punching a (different) woman. Fourth Circuit (over a dissent): Her racial-discrimination claim is undismissed.
- You know when there's a chart in the procedural history section of a habeas case that you're going to need to buckle up. And so it is in the Fourth Circuit this week, where a Baltimore drug deal was broken up by cops and the purported seller threw a bag on the ground and made a run for it. The bag contained 10 grams of cocaine, and prosecutors rely on two chain-of-custody reports. But the reports have discrepancies, and one wasn't handed over until the second day of trial. That's a Brady violation and, accordingly, a habeas grant. Dissent: "Here we go again." The majority ignores the party presentation doctrine (the man clearly chose not to assert a Brady claim in his habeas petition), doesn't appropriately defer to state decision-making, and is just plain wrong.
- "There is unrebutted evidence that [defendant's] lead counsel at trial fell asleep, more than once, during direct examinations of witnesses counsel then cross-examined in this capital murder trial." Which, sadly for the defendant, is the first line of the dissent in this Fifth Circuit habeas denial.
- There is surely a polysyllabic German portmanteau for a Pyrrhic victory which the "victor" makes even more calamitous by doubling down. That term would describe this case, involving a Detroit tow company whose towing license was suspended by the city on suspicion of misconduct. District court says company was unconstitutionally deprived of due process by not being given a hearing, but grants only $1 in nominal damages because any hearing would have resulted in termination. Going for broke, company appeals to Sixth Circuit—resulting in both an affirmance and published opinion describing in gory detail not only the evidence that company was colluding with car thieves but also its nasty habit of charging illegally excessive fees.
- Kentucky prosecutor assists young woman with her legal problems in exchange for nudes, sex. Which leads to a three-plus-year federal prison sentence for him. But were his acts "official acts" as contemplated in various sections of the U.S. code? Sixth Circuit: He makes some beguiling points and creative arguments, but conviction affirmed.
- It's unusual for indigent civil-rights plaintiffs to be taxed $360k for court-appointed expert fees, but, the Eighth Circuit observes, it's also unusual for indigent civil-rights plaintiffs to have filed a motion asking the trial court to split those fees between the parties.
- Missouri law requires registered sex offenders to post a sign on their residences on Halloween stating, "No candy or treats at this residence." A First Amendment violation? Eighth Circuit: Other provisions of the law—requiring that exterior lights be turned off and prohibiting Halloween-related contact with children—are more than sufficient without also requiring the signs.
- Celebrity tattoo artist Kat Von D skillfully recreated Jeff Sedlick's famous photo of Miles Davis on a friend's arm, leading a chagrined Sedlick to sue for copyright infringement. A California jury ultimately says So What and holds that the tattoo is not "substantially similar" to the photo under the Ninth Circuit's "intrinsic test" for substantial similarity, which looks to the jury's subjective interpretation of the overall concept and feel. Ninth Circuit: Affirmed. Concurrence: Juries are supposed to find facts, not vibes. We should ditch the intrinsic test.
- Washington-based Christian ministry wants exclusively to hire co-religionists who share its religious beliefs about marriage and sexuality for non-ministerial roles, but is arguably prohibited from doing so under the Washington Law Against Discrimination. They challenge the law as a violation of the First Amendment. Ninth Circuit: Correct. Under the church autonomy doctrine, the group may make hiring decisions based on religious beliefs (but may not discriminate on any other ground).
- Phoenix police encounter man behaving erratically. They subdue him and place him in a "RIPP" restraint, effectively hogtying him. After grunting, gasping, and falling limp, the man is placed facedown in the back of a patrol car. Shortly thereafter, he dies. His estate sues. Ninth Circuit: No qualified immunity.
- The dormant Commerce Clause prevents states from discriminating against interstate commerce in areas where Congress has been silent, but, the Ninth Circuit says, that doesn't apply to marijuana sales, where Congress has not been silent but has said "don't do marijuana sales."
- This Ninth Circuit opinion is nominally about copyright law but mostly functions as a thorough plot summary of the Top Gun movies.
- Company produces software that detects atrial fibrillation using the Apple Watch. Apple later changes its operating system to use a different algorithm to calculate heart rate data, rendering the company's software unreliable. At the same time, Apple introduces its own irregular rhythm notification using a different algorithm. (Apple shares both algorithms with app developers.). The company sues, alleging that Apple violated antitrust law in an attempt to monopolize the market for heart rhythm analysis apps. Ninth Circuit: You can't force Apple to give you the old type of data.
- Las Vegas police shoot, kill suspect they mistakenly believed was armed. Jury: The use of force was reasonable Fourth Amendment-wise. Ninth Circuit: But maybe his estate should get another shot at its state-law negligence claim. We have some questions for the Nevada Supreme Court. (To wit: Are negligence claims and intentional use of force claims mutually exclusive? And: Is Nevada tort law here the mirror image of federal Fourth Amendment law?)
- California allows conceal carry of firearms but only allows open carry in rural areas. Can it do that? District court: Yes. Ninth Circuit: "The district court may have been understandably led astray by cues from this court's recent Second Amendment cases . . ." The majority of this particular panel are not a fan of those cues. So no. Concurrence: Even in rural counties people can't get open carry permits because the forms are misleading. Dissent: I think the Supreme Court already dealt with this?
- Boy comes to the U.S. when he is seven and then grows up. But never gets legal status. He's pulled over in Othello, Wash. for failing to yield. Cops find a firearm in his waistband. He's charged for being an unlawful alien in possession of a firearm, plus a DUI. But does the firearms charge violate the Second Amendment? Ninth Circuit: For non-citizens it's just fine. Concurrence: Illegals aren't even part of "the people."
- Alabama man pleads guilty to child sex crimes (and gets 30 years). After which, the victim sues him; his insurer pays for an unsuccessful defense; and, in 2022, he's ordered to pay $10 mil. But he's not going to pay, so must the insurer? Eleventh Circuit: Nope, he knew he was facing potential liability in 2015 (circa his indictment), and it was up to him to timely inform the insurer of that fact. The victim's lawyers' informing the insurer on the man's behalf in 2018 was not nearly timely enough.
Friends, we've been gratified to see all the scholarly interest surrounding the 20th anniversary of Kelo v. New London, including a re-argument of the case at William & Mary Law School and now a symposium at the Yale Journal on Regulation. Our own little contribution to the latter reflects on how we argued Kelo then and how we would do so today and documents the unprecedented backlash against the decision. The article also resurrects a mostly forgotten piece of the Kelo story: The city never needed to take anyone's property; it controlled all but 1.54 acres of the 90-acre project area, and it would have been easy to work around those who wanted to stay. Indeed, one property owner was allowed to stay: the Italian Dramatic Club, a members-only, men's social club where Connecticut's political elite rub elbows to this day—surrounded by vacant lots and debris from bulldozed homes. Click here for the full story from IJ's Scott Bullock and Dana Berliner.
