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
Modest markups, shotgun pleadings, and the Kansas Two-Step.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Happy 250th! IJ is excited to celebrate America's Big 250 but in our own way. We're partnering with the Liberty & Law Center at Scalia Law School and holding a conference called "The Other Declarations of 1776." It's an examination of the various declarations of rights that the new states adopted in 1776, including their histories, legacies, and controversies. Plus there's an 18th-century-style mock argument with wigs. It's Friday, April 10 in Arlington, Va. Register here!
New on the Short Circuit podcast: Our John Wrench interviews some tip-top legal scholars with the latest on economic liberty, history and tradition, and more.
- Plaintiff: Look, if you're going to convict me for "knowingly" possessing a firearm despite having been convicted of misdemeanor domestic violence, you have to let me introduce evidence that we specifically tried to structure my guilty plea in state court so it wouldn't count as misdemeanor domestic violence. First Circuit: Shan't. Conviction affirmed.
- At beginning of the COVID-19 pandemic, New Yorker develops business plan to buy PPE masks in bulk and sell individual units at a 50% markup. Yikes! The President had declared masks a scarce resource under the Defense Production Act—triggering an anti-hoarding law—and one of the business partners in the plan is actually an undercover FBI agent. Jury convicts our entrepreneur of a hoarding conspiracy under the DPA. The Second Circuit affirms, spending many pages explaining why the word "accumulate" in the statute does not require hoarding over an extended time. Your summarist is wondering the whole time why the FBI is devoting its agents to a war on market-clearing prices, and on a rather modest markup at that.
- Do civil-rights advocacy organizations have standing to challenge allegedly grievous defects in South Carolina's juvenile-detention system? Fourth Circuit (2-1): No. "We do not doubt the sincerity of plaintiffs' desire to ameliorate the harm that may befall juveniles in . . . custody, only the wisdom of their decision to sue in place of those whose interests they seek to advance." Dissent: One of the organizations is required by federal statute to protect the constitutional rights of people with mental illnesses. Of course it has standing.
- Montgomery County, Md. schools require staff to use students' preferred pronouns and keep students' gender identities confidential from parents absent consent. A substitute teacher sought a PI on free exercise and free speech grounds; the district court denied the PI and dismissed both claims. Fourth Circuit: Rightly so. Employment Div. v. Smithmay be a "punch-drunk fighter," but it's still knocking out free exercise claims unless/until the Supreme Court says otherwise. And this speech is merely part of the job description. Dissent: A rationale that will age poorly when entire states use it to ban teachers from using preferred pronouns altogether.
- Allegation: Reynoldsburg, Ohio officer grabs woman (who's accused of being a very bad neighbor) as she opens front door without giving her a chance to comply with order to step outside. When she tenses up and pulls back, he performs a takedown maneuver that results in injuries that require four surgeries. District court: Could be excessive force. Sixth Circuit (unpublished): Qualified immunity. There are no cases on point, and we're pretty sure this was reasonable given the aggressive, barking dogs and guns inside her house.
- In which the Sixth Circuit reminds us that, while facial claims are supposed to be easier in the First Amendment context, they remain super-duper hard.
- A Battle Creek, Mich. animal-control officer allegedly demands that two civilians go corral a dangerous dog while the officer sits comfortably in the cab of his truck. (The dog, predictably, mauls them both.) And that may have been an ungentlemanly act, says two-thirds of this Sixth Circuit panel, but it was not an unconstitutional one.
- Sixth Circuit: Proving a regulatory taking requires you to show that the city upset your investment-backed expectations, but the record shows that your only expectations should have been that the city would behave badly here. Case dismissed!
- When the Second Amendment was adopted, there were no serial numbers on guns. So does that mean it's unconstitutional to prosecute someone today for "obliterat[ing]" one on a handgun? Seventh Circuit: If you wave your hands hard enough you can kind of see gun-recordy stuff like this at the Founding.
- When should courts address an argument raised for the first time on appeal? One-third of this Seventh Circuit panel thinks they've spotted this rara avis. But, be warned, the full panel fully agrees that "[t]he facts of this case are disturbing."
- Can you hear me now? We've all been in Zoom meetings or webinars where the discussion is dominated by technical snafus, but rarely does that spawn federal litigation. Here, though, a Missouri charity loses out on beaucoup bucks when its online art auction fails because of a broken YouTube link managed by its auction vendor. Perhaps unsurprisingly the vendor is broke, but is its insurance company on the hook? Eight Circuit: Nope, the policy excludes losses arising from electronic data mishaps, and that's just what this is.
- During COVID-19 lockdowns in a California prison, one prisoner is forced to stay either in his cell or in a crowded work area with about 130 other inmates. He is denied outdoor recreation time. Ninth Circuit: And there's no qualified immunity for the warden.
- "Shotgun pleading" has nothing to do with the Second Amendment. It is, however, often hard to find the sweet spot between not pleading enough facts and pleading so many, and then repeatedly incorporating them by reference, that shotgun pleading emerges. For further guidance and confusion compare the Ninth Circuit's majority and dissenting opinions in this Portland, Or., shotgun story of right-wing vs. left-wing violence, a riot prosecution, and a whole bunch of immunities.
- As Bill Clinton might say, what does the word "include," include? According to the Ninth Circuit that word's use in an Idaho law banning the use of certain sexual material in schools is pretty inclusive, making the law not only cover speech concerning certain activities associated with that former President but a whole bunch of other speech that the First Amendment protects. Therefore, the court ruled that under the Miller test the law should be preliminarily enjoined.
- During El Salvador's "state of exception," national police and soldiers repeatedly detained and beat a man who eventually sought asylum and relief under the Convention Against Torture. An immigration judge and the board of immigration appeals denied relief. Tenth Circuit: Yes, he was probably persecuted—but it wasn't politicalAnd yes, gov't officials beat him several times, caused him significant ear damage, had him sleep on a metal bed with no mattress, and forced him to exercise nude. But that's mere "abuse," not "torture." Petition for review denied.
- Colorado and Kansas share a border. Pot is legal in Colorado. In Kansas it is not. So perhaps it is not surprising that for years Kansas cops have engaged in unconstitutional tactics during roadside stops of out-of-state drivers. District court: I'm gonna get this stuff to stop by ordering a set of policies. Tenth Circuit: Actually, the stuff is pretty messy. We'll keep the injunction for some training, but that's it. Dissent: I can't believe you guys are allowing the "Kansas Two-Step."
- Allegation: Macon County, Ala. deputy sheriff swings by the office while off duty, gets intoxicated, speeds homeward in his police truck, sans lights, and kills another driver. A violation of the driver's due-process rights? Eleventh Circuit (over a dissent): We're going to assume that the deputy was acting under color of state law. We're also going to assume that the deputy's conduct "shocked the conscience." But he gets qualified immunity even so.
- A legally blind man who spent ~18 days in two Georgia jails sued sheriffs under the ADA and Rehabilitation Act after staff wouldn't help him read forms, navigate, use phones, provide medications, or file grievances. Eleventh Circuit: He's not entitled to money damages because there's no evidence that the sheriffs intentionally discriminated against him, nor is he entitled to injunctive relief because the claim is moot—he was released, charges were dropped, so no reason to believe he'll be incarcerated again. Affirmed.
- And in en banc news, the First Circuit will reconsider its decision about a Cambridge, Mass. police officer who was disciplined for posts he made on his private Facebook account. The court ordered supplemental briefing on a number of issues related to the Pickering balancing test.
- And in additional en banc news, the Sixth Circuit will reconsider its decision about class action certification in certain auto valuation cases, thus (at least for now) wiping out a circuit split.
- And in even more en banc news, the Eleventh Circuit will reconsider its decision on ERISA exhaustion and pleading standards.
Sonja Trauss is the executive director of YIMBY Law, an organization dedicated to ending the housing shortage in California. Sonja and YIMBY Law send letters to cities, offering views on housing-related policies. This is a routine practice carried out by individuals and groups across the political spectrum every single day. But the California State Bar is now signaling that the simple act of writing a letter to the government by Sonja and YIMBY Law is an unauthorized practice of law and threatening legal action. This is a clear violation of the First Amendment and the fundamental American right to petition the government. IJ is standing with Sonja and YIMBY Law and demanding the Bar back down.
