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
Permissible ingredients, mandatory detention, and burrowing mites.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
"Just two years ago, the Supreme Court reaffirmed that the Constitution promises you a timely and meaningful hearing before a neutral judge if police seize your property for civil forfeiture." But, says IJ Senior Director of Strategic Research Lisa Knepper, "modern civil forfeiture laws, as written and as practiced, frequently fail to deliver on that promise." And we've got the receipts to prove it. This week, IJ released Policing for Profit 4, the latest and greatest edition of our landmark research into the use and abuse of civil forfeiture across the country. The report contains all the latest data that you've come to expect, as well as a timely, meaningful, and unbelievably thorough (but accessible!) analysis of forfeiture statutes, procedures, and timelines across the states and the federal gov't.
New on the Short Circuit podcast: We bring on a team of experts to address that age-old, existential question: What's your favorite circuit?
New on the Unpublished Opinions podcast: We bring on a team of experts to address age-old, existential questions: What the Heck? And, why is Afroman so great? And, why is everyone talking about swinging dicks?
- Massachusetts provides special-education services to all students, but students enrolled in private schools by their parents—and only those students—are forbidden from receiving the services in their schools. Private-school families: But we have a fundamental right to choose private school, and it's unconstitutional to burden fundamental rights by conditioning public benefits on forgoing those rights. First Circuit: We think the Constitution only protects Free Exercise rights from this kind of burden, not other fundamental rights. Suit dismissed. (This is an IJ case.)
- Is a New York City law that revives otherwise time-barred civil claims based on gender-based violence preempted by a state law covering similar claims but with a different revival window? Second Circuit: This is a question better answered by the New York Court of Appeals. Question certified! Concurrence: The answer is clearly "yes," but I begrudgingly go along with the certification because a bunch of state courts are for some reason waiting for a federal court to answer this question of state law.
- Door-to-door salesman sues and gets judgments against servicemembers, domesticates those judgments in Maryland, and starts trying to garnish their bank accounts. Under the Servicemembers Civil Relief Act, courts can't enter a judgment against a non-appearing defendant unless the plaintiff files an affidavit stating whether or not the defendant is in military service. No such affidavits were filed at any stage of the salesman's various litigations. Fourth Circuit (2-1): And in the servicemembers' ensuing lawsuit, the governor of Maryland and the justices of the Maryland Supreme Court are not proper defendants. (The servicemembers initially sued the salesman as well, but they settled with him.)
- Quick! How many months in a year? Fourth Circuit: Correct.
- The FTC sues Intuit—the makers of TurboTax—in federal court, alleging the company misleadingly advertises its "free" product for "simple tax returns." After losing a motion for preliminary injunction, the FTC abandons the federal case and decides to turn to its in-house ALJs, who grant a 20-year-long injunction barring the company from advertising any product as "free" unless it meets stringent conditions. Fifth Circuit: Jarkesy'd! Get your phony-baloney "judges" outta here.
- Allegation: Husband-and-wife owners of Friendswood, Tex. restaurant voice displeasure with police officers inspecting the restaurant three times a day for four days straight. They're arrested, the start of a campaign of arrests and retaliation for (legally) staying open during COVID-19 shutdown and then for putting up a billboard decrying the police chief. Fifth Circuit (unpublished): Right, but there was probable cause to arrest. Case dismissed.
- Felon with three prior "Deadly Conduct – Discharge Firearm at Individual" convictions makes Second Amendment and Commerce Clause arguments. Fifth Circuit: Which all fail based on our own caselaw. Concurrence: I doubt "to keep . . . arms" counts as "commerce."
- The facts of this case are a tale as old as time—local gov't stymies developer's attempt to build stuff—but the part where the Fifth Circuit un-dismisses the developer's claims under the Sherman Act are a fun surprise.
- "Over the course of more than two years, hundreds of women at the Huron Valley Correctional Facility endured an 'unbearable' skin ailment. Live mites burrowed into their skin, causing red bumps and lesions on their wrists, armpits, fingers, waists, and genitals. Many women could not sleep, suffering 'relentless' itching and 'perpetual discomfort.' Some contemplated suicide. While this infestation spread from one unit to the next … the women 'begged' for medical attention, lodging hundreds of grievances and alerting Defendants 'countless' times." Anyway, that's from the partial dissent in this Sixth Circuit decision, in which the 8A claims against supervisory officials are dismissed (but state-law claims can proceed).
- Seventh Circuit: It was shockingly unconstitutional for Appleton, Wisc. officers to hide and destroy evidence prior to murder trial (and also for prosecutors to authorize the same). That said, habeas denied.
- If you get a kick out of parsing phrases like "applicant for admission" versus "seeking admission," this Eighth Circuit opinion will be a real treat. Not so, however, for immigrants without lawful status. The court (over a dissent) sides with last month's Fifth Circuit opinion endorsing the present administration's novel interpretation of immigration law, mandating detention of people unlawfully in the U.S. without a chance for release on bond.
- Distressed man (an Air Force veteran) runs into traffic on Los Angeles highway and is struck by vehicles. When highway patrol arrives, he runs toward officers, holding an eyeglass case that an officer mistakes for a gun. The officer shoots him dead. Ninth Circuit (unpublished): The video doesn't blatantly contradict his estate's argument that the officer should have known he posed no threat; to a jury this must go.
- Federal law expressly prohibits states from enacting any requirements regarding the operation of meat/poultry processing plants or the permissible ingredients in products created in those plants. Florida bans the manufacture, distribution, or sale of meat/poultry products containing cultivated animal cells—i.e., cells grown under laboratory-like conditions in USDA-regulated plants. So surely the federal law expressly preempts Florida's law, right? Eleventh Circuit: Whatever would make you think that? (Ed.: This is an IJ case and, thankfully, our Dormant Commerce Clause claims are proceeding below.)
- Allegation: Echols County, Ga. school officials, who like to use racial slurs, retaliate against and ultimately fire black teacher on a pretext. (Incidentally, the teacher integrated the county's schools decades ago as a student.) She sues, and the county settles, but officials ignore their responsibilities under the agreement. Officials: It might be unconstitutional to interfere with contracts because of race, but it's not clearly established that we can be held liable under Section 1981 for it. Eleventh Circuit: No qualified immunity. The officials had notice that their alleged conduct was unlawful; they didn't need notice what cause of action is available to remedy it.
- Without warning, Atlanta officer tases fleeing sexagenarian who posed no threat and was not suspected of a serious crime. The man falls down a hill and suffers serious injuries upon colliding with metal utility box on concrete pad. District court: The jury's award to the man's estate is reduced from $40 mil to $21 mil. Eleventh Circuit: Affirmed. Dissent: We should have granted QI. This guy rolled down a hill; in the prior case on point, the guy fell straight down off a ledge.
- And in en banc news, the Ninth Circuit (over dissentals) will not reconsider its decision that California parents who homeschool their kids—by means of enrolling them in a public charter school program that pays for educational materials—cannot have the state pay for religious educational materials.
Victory! It's taken nearly a decade, but this week IJ clients Lij Shaw, who runs a home recording studio, and Pat Raynor, who has a one-chair home salon, officially prevailed over Nashville's zany zoning regime, which heaped irrational restrictions on some home businesses but not others.
Victory! This week, a federal judge ruled that it was unconstitutional for Fort Bend County, Tex. officials to retaliate against IJ client Justin Pulliam, an independent journalist, because they didn't like his reporting. Says IJ attorney Christie Hebert: "Today's victory makes clear that law enforcement can't arrest you for vague crimes like interference with public duties as a pretext for silencing your views."
Victory! It's not every day one overcomes absolute prosecutorial immunity. But today is that day, and Escambia County, Ala.'s district attorney is going to have to answer for his bogus investigation—which resulted in arrests, strip searches, and felony charges—of school board members (because they didn't want to renew the superintendent's contract) as well as journalists who reported on it. Nor does qualified immunity protect the sheriff or the deputies involved in the investigations and arrests. Whuh-BAM!