The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy

Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Bad aim, conjugal visits, and a cavalier gun dealer.

|

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Hot dang! Today, the Michigan Supreme Court agreed to hear an IJ case of keen interest to state constitutional mavens: whether there's an implied cause of action to bring constitutional-tort claims against local governments and local officials who behave very, very poorly. (We say yes.)

And speaking of state constitutions, if you're a fan of courts interpreting them as something other than carbon copies of the federal Constitution, IJ's Rob Peccola has a heartening tale about Pennsylvania's search-and-seizure provision for you over at the Brennan Center's State Court Report.

New on the Short Circuit podcast: If someone bails you out make sure you get a receipt.

  1. In which the Second Circuit finds that Cavalier Knight has standing to challenge New York's gun-dealer licensing law but somehow spends 14 pages on legal analysis instead of just acknowledging that a guy named "Cavalier Knight" really has no choice but to become a gun dealer.
  2. Federal officials arrest lawful permanent resident to avert "potentially serious adverse foreign policy consequences." Permanent resident: That's bogus, this is all retaliation for my pro-Palestinian speech. D.N.J.: Release him. Third Circuit (over a dissent): Vacated. He can pursue his claims later in the removal process, and if he's wrongfully imprisoned in the meantime, well, that happens all the time.
  3. In the days following 9/11, co-founder of Falls Church, Va. Islamic Center tells followers they should repent, leave the U.S., join the mujahideen, go to Pakistan for combat training, and otherwise help Muslims defend Afghanistan. He's convicted of a slew of offenses in 2005, including soliciting others to levy war against the U.S. (It's on direct appeal some two decades later following a series of intervening appeals about the man's access to relevant documents.) Fourth Circuit: As inflammatory, disturbing, and deeply offensive as his words may have been, they did not urge a concrete criminal plan or provide operational assistance for the commission of any particular offense. Thus, his speech was protected by the First Amendment and his convictions vacated.
  4. Detroit police hatch a scheme in 1994 where they place snitches in cells to procure confessions from suspects; in exchange for testimony, the snitches are treated to sweet plea deals, conjugal visits, drugs, alcohol, etc. False testimony is encouraged. One such snitch's (particularly unreliable) testimony leads to a man's conviction for murdering his foster mother—a crime for which he'd be exonerated 26 years later. He sues. Sixth Circuit: To trial this must go. No qualified immunity.
  5. East Moline, Ill. prison officials stick inmate in a cell that lacks a toilet or a sink (while he recovers from surgery necessitated by an attack from another inmate). He has to live in close proximity to his waste for up to eight hours at a stretch, and he's unable to shower for days or weeks on end. Seventh Circuit: An Illinois regulation does indeed require a better sanitation situation, but that's neither here nor there Eighth Amendment-wise.
  6. Columbia County, Ark. officer tries to shoot nine-pound dog, misses. The ricochet hits the dog's owner in the leg. Eighth Circuit: But she can't sue because accidentally shooting someone isn't a constitutional violation. Concurrence: Wrong! She can't sue because we don't know if it's a constitutional violation.
  7. The Telephone Consumer Protection Act prohibits making or initiating calls using prerecorded voices. Does that apply to an unsolicited text message that contains a video file (of, in this particular instance, Ivanka Trump telling people to vote)? Ninth Circuit: No. The statute applies only to calls or texts that begin with a prerecorded voice. Dissent: The video was sent contemporaneously with the text message and was automatically downloaded to the plaintiff's phone. Certainly at the pleadings stage, that's good enough for the TCPA.
  8. Friends, it is contended that in Jones v. United States (1960), SCOTUS as good as deleted the Fourth Amendment's "oath or affirmation" requirement, which is bad and wrong and results in situations like the instant case, where warrants issued on the strength of double hearsay from a patently unreliable source. Tenth Circuit (unpublished): Good luck with the cert petition. [This is an IJ case.]
  9. Colorado Springs, Colo. officer tases suspected car thief as he flees (on foot) down a rocky slope. He falls and breaks his neck. Tenth Circuit (unpublished): The officer violated dept. policy by not warning him before the tasing. But that's neither here nor there. Qualified immunity.
  10. Residents of DeKalb County, Ga. want to collect signatures for a local referendum in nearby Atlanta aimed at repealing a city ordinance that authorized the lease of land the city owns in DeKalb County to the Atlanta Police Federation for construction of a new training facility. Uh oh! The Atlanta municipal code restricts signature gathering for local referendum petitions to Atlanta residents. A juicy First Amendment issue! Eleventh Circuit: Unfortunately, the referendum process cannot be used to repeal local ordinances, so there's no harm to the plaintiffs.
  11. After high-speed chase through Escambia County, Fla. in stolen car, man flees on foot. He's convicted for carrying a firearm. Eleventh Circuit (unpublished): And his sentence is fine because a prior aggravated assault is a "crime of violence." Concurrence: Y'know long sentences don't deter crime; the expectation of getting caught does.
  12. University of Florida law student tweets that "Jews must be abolished by any means necessary." He's expelled and sues, alleging that UF violated his First Amendment rights. The district court grants a preliminary injunction ordering the student's reinstatement. UF asks the Eleventh Circuit to stay the injunction pending appeal. Eleventh Circuit (unpublished): Granted. Under Tinker v. Des Moines, the student's calls for extra-legal violence were likely not protected by the First Amendment. Dissent: Tinker shouldn't apply to law students, and even vile tweets are protected by the First Amendment.
  13. And in en banc news, the Fifth Circuit will reconsider its decision that the House of Representatives did not violate the Quorum Clause of the U.S. Constitution when, during the COVID-19 pandemic, it allowed members to vote by proxy on the Consolidated Appropriations Act of 2023.

Can Renee Good's family sue the ICE officer who shot her in the face? IJ's Anya Bidwell discusses the challenges and complexities over on the Bloomberg Law podcast. Meanwhile, over at Bloomberg Law's op-ed page, she and Patrick Jaicomo have some words about what states can do to reopen the courthouse doors.

Papers, please. Over at Newsweek, IJ's Josh Windham explains that, contrary to DHS Secretary Noem's recent comments, American citizens are not required to carry proof of citizenship on them at all times.