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
Water rights absurdities, ponderous parking ordinances, and fast trains.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! Last year, in Rivera v. Borough of Pottstown, a Pennsylvania appeals court ruled that individualized suspicion is required before gov't officials can get a warrant to search homes for code violations. Which was great! But now the borough is demanding that renters submit to suspicionless searches by private inspectors. So, folks, we're doing Rivera v. Pottstown II.
New on the Short Circuit podcast: We place our bets—sorry, predictions—on whether Kalshi is on the up-and-up when it comes to Indian gaming and on prediction market regulation more generally.
- German company wins bid to supply trains (that can travel >186 mph) for new railroad from Rancho Cucamonga, Calif. to Las Vegas. (The company's trains currently travel 220 mph.) The first two trains will be built in Germany with American workers on hand for training—and then eight more Made in America. Losing bidder (whose trains "presently have a maximum speed of 160 miles per hour"): That's not Buy America enough. D.C. Circuit: It is.
- Rhode Island man jumps out of second-story window to evade arrest, breaking his feet and ankles; he claims he has to hobble around prison without doctor-recommended accommodations. Prison officials: The state tort claims act may waive sovereign immunity for "all actions of tort," but the state supreme court has never definitively said whether that applies to discrimination claims. First Circuit: We checked in with the Rhode Island Supreme Court on this, and they seemed pretty definitive.
- Legal research platform ROSS Intelligence trained its AI system on Westlaw headnotes. A copyright violation? Third Circuit: Yes. The headnotes are copyrightable and their use in training wasn't fair.
- It would obviously violate the First Amendment for city officials to pass a law making it illegal for a sound-truck operator to support the mayor's political opponent, but what if instead they just conspire to seize the guy's truck by invoking esoteric parking and noise ordinances? Sixth Circuit: Yeah, that's unconstitutional, too! (Though there's qualified immunity for officials who were just following the conspirators' orders.) (This is an IJ case.)
- In 1995, saying she "just felt mean that day," Knoxville, Tenn. woman (with friends) tortures and kills another woman, taking a piece of the victim's skull that she said she was "eating breakfast with." She's sentenced to death. She seeks habeas relief, loses. Her execution is set, and a few months before, she challenges the state's execution protocol. At a hearing, the state's attorney says that the state "does not dispute" that the woman suffered from a history of rape and sexual abuse. Woman, hours before her execution: That concession "erodes the foundation" of my state court proceedings and requires reopening my habeas petition. District court: This is effectively a second habeas petition, which courts can't consider. Sixth Circuit, over a dissent: We'll stay the execution so we can properly consider the arguments. Supreme Court, over a dissent: Stay vacated. (The state then botches the execution, and the woman is now in critical condition.)
- Your summarist didn't take the classes in law school that tell you what a "swap" is. But whatever the meaning, the Sixth Circuit doesn't buy Kalshi's argument that "predicting" the "event" of the Dodgers taking the next series in 5 is not in the same league as "betting" on the future price of pork bellies. Which means the Ohio and Tennessee gambling authorities win this round and Kalshi's attempts to preliminary enjoin them fail.
- When officers have an arrest warrant, do they need probable cause to think the subject is home before they bust in to apprehend them—or a mere reasonable belief? Sixth Circuit (unpublished): We've said both, and we're not clearing anything up today. Qualified immunity.
- Ninth Circuit: It is not a Fourth Amendment violation for police to hold a felony suspect at gunpoint until he's cuffed, even if he's compliant. Partial dissent: They had no reason to think this guy was violent, and a jury might think pointing guns at his head from three feet away was unreasonable. But there's no clearly established law on that, so we do indeed have to reverse the denial of QI.
- After the creation of the Great Basin National Park in the 1980s, the feds began diverting water inside the park, a serious problem for ranchers downstream, whose water rights were set out in a 1934 state-court proceeding. Ninth Circuit: Case undismissed! Congress waived sovereign immunity in these cases in 1952, and it would be "absurd" were it otherwise. Dissent: What's "absurd" is the majority's reading of the statute, precedent, and legislative history. This is going to be a disaster.
- Mexican citizen in the U.S. since 2000 loses bid to have his removal canceled, but he's allowed to leave voluntarily, and he pays the $500 required for that the next day. He also promptly appeals on cancellation of removal. On appeal, the BIA affirms on cancellation and also says he never paid the $500, even though the receipt is in the record. Ninth Circuit: Yeah, he paid the receipt. Voluntary removal is still an option. Concurrence: The gov't argued if the BIA gets a fact wrong, the appellant is out of luck. That's outrageous. Dissent: It's what SCOTUS has said.
- If there had been a prediction market on whether the Ninth Circuit would uphold Arizona's sweeping new campaign finance disclosure law—despite our nation's long and storied history of anonymous political speech—your summarist might have saved himself some time reading this 103-page opinion reaching an extremely predictable result.
- Seattle's Race and Social Justice Initiative "aims to undo institutionalized racism in the workplace by, among other things, requiring employees to attend trainings on racial justice and facilitating racially aligned affinity groups." Participant alleges that it also led to a hostile workplace in which white people were denied gov't benefits and employment opportunities. Ninth Circuit: Case undismissed.
- Allegation: Oregon inmate is hit with pepper spray meant for someone else and isn't allowed to clean it off for two very unpleasant days. District court: You filed suit too late. Although the deadline was delayed while you muddled through the prison's internal grievance process, your first attempt at grieving doesn't count toward the tolling. Ninth Circuit: Case undismissed.
- Alabama law prohibits convicted sex offenders from living with children, including even their own children. Eleventh Circuit: Which is unconstitutional. Every other state addresses this issue without imposing irrevocable prohibitions on parents.
- Eleventh Circuit: If you obtained a federal loan by fraudulently claiming your scuba-diving business was shut down due to COVID-19 (when it was instead shut down due to the fact that you'd killed a diver with your boat), it's perfectly fine for the feds to try you for the killing and the frauding at the same time.
- In which the Eleventh Circuit reiterates that a gov't defendant's decision to give up on a challenged policy does not necessarily deprive the federal judiciary of the power to order that the policy to stay given up.
- And in en banc news, the Ninth Circuit will not reconsider its decision that the Forest Service's transfer to a private mining company of federal land home to an Apache ceremonial religious ground and the world's third-largest copper deposit passes muster under the Free Exercise Clause and RFRA. Dissental: Converting the sacred site into a 2-mile-wide, 1,000-foot-deep hole is obviously a substantial burden on the Apaches' religious exercise.
Victory! This week, a federal jury ruled that Bexar County, Tex. is liable for its policy of unconstitutional highway stops. In Bexar, and indeed elsewhere, ordinary travel is flagged as suspicious by license-plate readers (among other means), resulting in thousands of pretextual stops and extended searches of law-abiding motorists. IJ client Alek Schott, for instance, was falsely accused of drifting over a fog line and interrogated for over an hour after a Border Patrol analyst flagged his work trip as suspicious (and after a K9 falsely alerted on his truck). "The Fourth Amendment does not permit this," says IJ Attorney Christie Hebert. "Today, a jury of Texans looked at how this program actually worked and said so. Every agency in this state should understand that we are fully prepared to enforce this verdict."
