The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[Here is the latest edition of the Institute for Justice's weekly Short Circuit newsletter, written by John Ross.]
If a police officer demands that you submit to a warrantless search or face criminal sanctions, can that search be deemed consensual? It's an abuse of words to answer in the affirmative, as a state supreme court recently did, argues Evan Bernick of the Center for Judicial Engagement, and the U.S. Supreme Court should repudiate the ruling. Read Evan's missive here.
Readers may also be interested in an amicus brief the Institute for Justice just filed urging the Supreme Court to bury state Blaine Amendments—provisions borne of anti-Catholic bigotry in the 1800s that live on today to no good end. Read on, friends.
In 2011, the DOJ released a report documenting widespread police abuse in Puerto Rico. Allegation: The following year, an officer shot a citizen for no discernible reason. Can the citizen sue the police chief? Indeed so, says the First Circuit.
The originator of "the 'Bling!' style" purloined a 7.44 carat diamond, which, following a series of transactions, ended up in the hands of innocent owners. Second Circuit: Who can't keep it. The original owner's title is forever (or at least until validly transferred).
The Third Circuit accepted a settlement setting up a fund for retired NFL players who suffered, suffer, and may suffer from concussion-related maladies that will distribute awards for up to 65 years. Notably, the estates of players diagnosed with chronic traumatic encephalopathy (only diagnosable post-mortem) after April 2015 will not receive payouts. Instead, players who develop symptoms associated with CTE, such as dementia, will be compensated for those symptoms.
Newark, N.J. man exercises his right to remain silent after his arrest. Trial prosecutor: So you're saying that police framed you, and you didn't tell us until now? Third Circuit: As we've repeatedly made clear, the gov't may not use post-Miranda silence to impeach a defendant. New trial. Good on the appellate prosecutor for his candor, though.
Gloucester County, Va. school officials forbid transgender student from using male bathrooms after parents complain. District court: The school now has several single-occupant, unisex facilities available; there's no need to allow him into the boys' facilities while his constitutional claim goes forward. Fourth Circuit: He should be allowed in, and his sex-discrimination claim should not have been dismissed. Dissent: The term "sex" unambiguously means "biological sex" in Title IX, and there is no basis in the law for now holding that it encompasses "gender identity."
Undercover ATF agents invite Prince George's County, Md. men to rob fake stash house. They go for it. Wait a tick! Since 2011, everyone prosecuted for their role in such stings (in the instant jurisdiction) has been African-American. Selective enforcement/prosecution? Fourth Circuit: Convictions affirmed.
DEA to physician: We have a subpoena (no judicial oversight) but not a warrant (judicial oversight) for your pain patients' medical records. Turn them over—but don't tell your patients about it. Magistrate judge: Comply with the subpoena, but you can tell your patients about it. Fifth Circuit: No one is saying patients don't have an expectation of privacy in their records, but render unto the DEA.
Twenty-five years ago, the Fifth Circuit struck down a Texas law barring out-of-state residents from owning bars, liquor stores, and the like. In 2014, a group of in-state booze retailers asked the courts to reopen the case and revive the law, arguing that a 2005 Supreme Court decision changed the way such cases are reviewed. Fifth Circuit: We'll not touch the old judgment. (The 2005 Supreme Court decision, a victory for winemakers and oenophiles, was an IJ case.)
Attorney helping (but not representing) a friend, the defendant in an ongoing criminal jury trial, makes comments to the media, which is prohibited by local court rules. Are sanctions appropriate? Fifth Circuit: We don't care whether the attorney was representing a party, but we do care whether the restriction on speech was narrowly tailored. And, yeah, not so much.
Greeneville, Tenn. pharmacist gives away a few pills sans prescriptions, perhaps out of a misguided sense of compassion. Oh no! The beneficiary (and others) extort him; soon he's giving away thousands of pills. Gov't: Coming clean was the right call. Court: Have a below-guidelines sentence. Pharmacist: The guidelines have now been reduced. Shave some time off my sentence? Sixth Circuit: No.
Inmate: I'm being punished for heroin that was found not in my cell (10-5D), but in a cell (10-6D) that's on the other side of the prison. This I can prove if allowed to access and present some readily available evidence. Corrections officials: No. District court: No. Seventh Circuit: Yes.
Unable to collect business debts through legal means, printing company owner hires some tough guys, including a bareknuckle boxer, to try extralegal means. True crime, via the Seventh Circuit.
TSA security screener quits after being disciplined for his untoward comments to a female traveler. Days later, he calls in a bomb threat to LAX. Can the gov't forcibly medicate him (to alleviate the symptoms of his paranoid schizophrenia) so he's competent to stand trial? Ninth Circuit: The high dosage the government proposes sure doesn't seem to be in defendant's medical interest.
Are Kansas public schools violating the Establishment Clause by failing to include in its curriculum religious explanations for life on earth? No need for a COPEs monkey trial, says the Tenth Circuit. Plaintiffs haven't been injured, and thus cannot sue.
Over one hundred private ski resorts in the U.S. operate (by permit) on Forest Service land. May one of them—Utah's Alta—continue to enforce its longstanding ban on snowboarding? Tenth Circuit: Yes. (Fun fact: Only two other U.S. resorts ban snowboarders from their slopes, and they both operate on private property.)
As he nears the end of his term, New Mexico's State Land Commissioner appoints a subordinate, who is likely to lose her job when the new administration takes power, to a civil-service position, from which she cannot easily be removed. The new commissioner fires her anyway. Tenth Circuit: Maybe illegally, but that should be sorted out at trial.
Last year, the Supreme Court struck down the "residual clause" of the Armed Career Criminal Act (which mandated a 15-year minimum sentence for third-time offenders) for being too vague as to what crimes count towards one's three strikes. This week, the Court ruled that last year's decision is retroactive. Eleventh Circuit: Which doesn't help this guy, whose violent misdeeds are clearly covered by other parts of the ACCA. Concurrence: But it might help some of these 110 people whose claims we previously rejected, so someone might want to look into that.
If you want to earn a living as a tour guide in Charleston, S.C., you need the government's permission. You'll need to pass a 200-question written test that is chock full of mundane and irrelevant trivia—and then a separate oral exam. In January, the Institute for Justice sued the city on behalf of three tour guides who spent months memorizing the city's 490-page study manual (per officials' instructions) only to fail the written exam, which inexplicably included numerous questions that weren't in the manual. Asked in court last week how the law protects the public from harm, the city's attorney was unable to point to any evidence at all. The First Amendment does not abide such pointless restrictions on people who wish to speak for a living. Read more about the case here.