Sidewalk chalk, invasive owls, and ostinato copyrights.

John Ross · March 11, 2022

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Sonia Ekemon recently became a widow, and she wants to support herself and her three children by braiding hair, a skill she first learned in a refugee camp in Benin. But that’s illegal in Idaho, where she’s lived since 2000, unless she spends upwards of $20,000 to attend beauty school where the curriculum is both irrelevant and antithetical to natural hair care. IJ Attorney Dan Alban has more on IJ’s newest lawsuit in the Idaho Statesman.

At oral argument in the Supreme Court last week, the Solicitor General argued that the federal gov’t takes the position that a Bivens remedy is available to victims of run-of-the-mill Fourth Amendment violations (like illegal searches and seizures and excessive force) by federal officers. Which was quite a surprise! Because the gov’t has for years taken the opposite position in a pair of IJ cases now before the Court. Click here and here to read our supplemental briefs in support of certiorari.

  • Like many other universities, American and George Washington moved instruction online and largely closed their campuses in response to COVID-19. Did the schools violate their contractual obligations or unjustly enrich themselves by then refusing to refund any portion of students’ tuition and fees? The D.C. Circuit says some of the plaintiffs’ claims should not have been dismissed.
  • At least 40 pieces of art plundered by the Nazis from the collection of Baron Mór Lipót Herzog, “one of Europe’s great private collections of art,” are now in the possession of three museums and a university in Hungary. D.C. Circuit (2017): Herzog’s descendants can seek compensation or recovery of the art in U.S. court. D.C. Circuit (2022): And they can seek the same from a new defendant, a Hungarian state-run asset management company, thanks to legislation (the Holocaust Expropriated Art Recovery Act) passed in 2016.
  • The feds say it’s not enough that the president has the power to prohibit the entry of certain aliens during the COVID-19 pandemic and to deport those who enter illegally—the executive simply must have the power to deport them to countries where they are likely to be tortured. D.C. Circuit: Not at all clear what that has to do with COVID-19, so we’re going to enjoin you from doing that.
  • Suffolk County, N.Y. prosecutors prosecute 10 Filipino nurses—and also their lawyer—for crimes related to “patient abandonment” after they left nursing homes jobs in protest of poor working conditions (on advice of the lawyer). Yikes! A state appeals court issues an “extraordinary” writ barring the prosecution. Turns out the prosecutors were doing a political favor for the nurse’s employer, which had first complained without success to the police and to state nursing regulators (who investigated and found no wrongdoing). Second Circuit (over a dissent): The prosecutors are immune from suit.
  • Student expelled from Yale for sexual assault sues his accuser for defamation over her testimony at the university’s disciplinary hearing. (Separately, he was acquitted at a criminal trial.) Second Circuit: Ordinarily, witnesses in judicial and quasi-judicial proceedings are entitled to absolute immunity from defamation claims, but after a look through Connecticut caselaw dating back to 1894, we’re not sure if that includes non-government proceedings like Yale’s. Question certified to the state supreme court.
  • In response to police conduct during public protests in 2020, the state of New York and private plaintiffs bring six lawsuits—eventually consolidated—against the City of New York and various city officials. The Police Benevolent Association of the City of New York, Inc., moves to intervene as of right. Second Circuit: And they must be allowed in; the PBA has an interest in the safety of front-line officers who may be affected by a ruling on the NYPD’s allegedly unconstitutional policies.
  • Younger abstention is a baroque doctrine about which entire podcasts have been recorded and under which state and local officials can try to wriggle out of federal-court lawsuits when those lawsuits would interfere with certain kinds of state-court cases. Supreme Court (2013): And the state-court cases that can permit such wriggling “extend[] . . . no further” than (a) criminal prosecutions; (b) civil-enforcement proceedings; and (c) civil proceedings uniquely in furtherance on the state courts’ ability to perform their judicial functions. New Jersey AG: And subpoenas too, right? Subpoenas? We can wriggle out of federal lawsuits if we’ve issued state subpoenas, right? Right? Third Circuit: To paraphrase our Circuit’s favorite son, the Supreme Court did not stutter. So no, Mr. Attorney General: No abstention.
  • In 2018, South Carolina’s governor issued an executive order barring abortion providers from receiving federally-provided, state-administered Medicaid funds for the non-abortion services they provide. Fourth Circuit (2019): Seems like that violates federal law. No enforcing the order while litigation proceeds below. Fourth Circuit (2022): No enforcing that order ever.
  • Fifth Circuit: “Ann Sheperd, the owner of a home-health agency, lawyered up after being indicted for Medicare fraud. But there was a tiny problem: Unbeknownst to Sheperd, her pretrial lawyer—who represented her until days before trial—also represented one of the Government’s star witnesses. Oops.”
  • In 2018, inmate at Louisiana state prison (now-deceased of unrelated causes) files suit alleging guards beat him up in retaliation for filing grievances; guards say they did nothing of the sort. The defendants release nine video clips of the incident with some time gaps in between. Can the inmate’s estate get the rest of the video? Magistrate judge: No. District judge: Don’t need to rule on that. You lose. Fifth Circuit: Actually, the district court needs to rule on that.
  • Mississippi woman is accused of stealing laundry, and police handcuff her for eight minutes before security footage reveals her innocence. She sues for excessive force. Fifth Circuit: The video shows no such thing. No error for the district court to order her to pay $3.1k for wasting everyone’s time.
  • Around 11 p.m., pretrial detainee in Detroit jail loses consciousness, slides off bench, and lies facedown on the concrete floor for nearly four hours. He dies. Jail supervisor: Even though written jail policy is for a guard to physically enter the room he was in every 30 minutes to check on detainees, we just look at them through the glass and leave them be if it seems like they are sleeping. Sixth Circuit: Violating jail policy isn’t the same thing as violating the Constitution.
  • Sixth Circuit: It’s clearly established that police can’t smash an unresisting, unthreatening person’s head into a soda machine, take her to ground, and kneel on her back. So Genesee Twp., Mich. officers who were summoned to perform a welfare check on a distraught woman and then allegedly did all those other things will have to convince a jury the woman was actually resisting or threatening. No qualified immunity.
  • Eighth Circuit: It’s clearly established that—after a foot chase during which a suspect visibly discarded a gun—police can’t shoot the suspect as he is turning around with arms raised in surrender. So no qualified immunity for a Burlington, Iowa officer who shot and killed a man who was (allegedly) laying down in surrender—after a foot chase during which the officer (allegedly) saw him discard a gun.
  • While man is being treated for gunshot wounds to the face and foot, St. Paul police enter his hospital room and take his bloody clothes. A Fourth Amendment violation? The Eighth Circuit says no, there’s no reasonable expectation of privacy in a hospital room and so there’s no need to suppress evidence that contributed to his conviction for being a felon in possession of a firearm.
  • Did the repeating ostinatos in pop star Katy Perry’s song “Dark Horse” rip off Christian hip-hop artists’ earlier effort? You be the judge. And also the Ninth Circuit will be the judge: The district court committed no error in vacating a $2.8 mil jury verdict against Perry and granting judgment in her favor.
  • Las Vegas police arrest activists who used chalk to write message critical of the police on sidewalks at protests. Ninth Circuit: A jury might think that was retaliation over the activists’ protected speech, given that Las Vegas police have never arrested anyone else for chalking on public property. No qualified immunity.
  • Can the feds kill a bunch of barred owls in the Pacific Northwest, where they are non-native but flourishing, to see if that does anything to help the endangered northern spotted owl, which is native to the region? Ninth Circuit (2018): Yes. Ninth Circuit (2022): Yes.
  • And in en banc news, the Ninth Circuit will reconsider its decision that a March 2020 public health order requiring Ventura County, Calif. gun stores and firing ranges to close for 48 days (but not other kinds of businesses) to fight COVID-19 violated the Second Amendment. (Helpfully, the author of the original panel opinion also wrote a concurrence containing a draft en banc opinion finding no constitutional violation.)

Victory! This week, a federal judge ruled that the District of Columbia’s restrictions on online teletherapy—which prevent our client, a Virginia-licensed therapist, from seeing patients in D.C. online—are subject to strict scrutiny. Click here to learn more. And also, victory! Last week, a Fulton County Superior Court judge ruled that a Georgia law requiring that women who teach other women how to breastfeed earn the equivalent of an advanced degree is unconstitutional and would harm minority and rural communities. Click here to learn more. And additionally, victory! Last week, a Harris County judge granted a temporary injunction that will allow a Pasadena, Tex. auto mechanic to open his shop without complying with an unnecessary and prohibitively expensive mandatory parking requirement. Click here to learn more.