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.]
The D.C. Circuit recently struck down a law granting Amtrak regulatory authority over competing railroad companies. Which is all to the good, argues Evan Bernick of the Center for Judicial Engagement. Read more here.
- Condo association: Welcome to our community. No pets. Resident: I need an emotional support dog. Condo association: Live somewhere else. First Circuit: That's a Fair Housing Act violation.
- Quincy, Mass. chef arrested for sexual, threatening phone calls to a neighbor. Yikes! A disgruntled former subordinate at his restaurant (and/or their spouse) framed him by using a service that disguises one's voice and lets one control what number appears on an interlocutor's caller ID. First Circuit: The neighbor cannot sue the telecom provider offering said service.
- Federal law protects military members serving overseas who fall behind on property taxes back home from some penalties local governments may wish to impose. Does the law shield a Philadelphia rental home held in the name of a service member's business from foreclosure? It does not, says the Third Circuit.
- After an hours-long standoff, suspect emerges from bathroom pointing a high-heeled shoe wrapped in a t-shirt at Richmond, Va. SWAT officers. They kill him. Fourth Circuit: Qualified immunity.
- Uncle calls 911 for help transporting suicidal nephew who has agreed to go to Raleigh, N.C. psych hospital. After moments-long standoff, officer shoots, kills nephew, who did not obey orders to drop a paring knife. Fourth Circuit: No qualified immunity.
- Harris County, Tx. deputy sheriffs tase, cuff, and then, when he continues to struggle, hog-tie a motorist (in violation of department policy). He dies. Qualified immunity? Yes, says the Fifth Circuit. Dissent: He "received the death penalty … for the misdemeanor crime of failing to stop and give information."
- Man sues IRS for failing to turn over documents under the Freedom of Information Act. Fifteen months later, IRS argues that the suit is barred by a settlement agreement it previously entered with the plaintiff. Too late to raise that defense? Sixth Circuit: C'mon, what's fifteen months of litigation between sophisticated parties? Dissent: "To be blunt, if this situation—tantamount to neglectful silence—does not amount to waiver, then nothing will."
- Defendant refuses to take polygraph test. Did the district court err in allowing testimony about the refusal? Seventh Circuit: Polygraphs are unreliable, and yet jurors may intuit guilt if they learn of such a refusal. Still, there's no need for a new trial. Dissent: Defendant is entirely unsympathetic, so this is the perfect case to announce a new rule barring polygraph evidence.
- Mistaken eye-witness testimony, a false confession elicited from a learning-disabled suspect, a fabricated confession, Brady violations, actual innocence-this case has it all. Seventh Circuit: And, for a slew of reasons, none of it leads to liability for anyone.
- Jail officials in Ramsey County, Minn. return cash taken from arrestees (minus a $25 fee) in the form of a debit card that starts accruing additional fees in 36 hours. Eighth Circuit: Which is not unconstitutional, as officials furnish arrestees with instructions about how to avoid the additional fees. The $25 fee also passes muster; folks who are acquitted or released without charges can fill out a form and get their money back.
- Reasonable people know that if an FBI agent comes to one's office, arranges for a private chat, and then accuses one of criminal wrongdoing there is no need to answer any questions, says the Eighth Circuit. So defendant's statements need not be suppressed.
- Federal law does not preempt an Arizona law that criminalizes the use of stolen ID to get a job, nor is the state's law plainly unconstitutional, says the Ninth Circuit. On remand, the district court may find, however, that the manner in which Maricopa County officials enforced it (raiding businesses and rounding up hundreds of illegal immigrants) did violate the Constitution.
- Naturalized citizen hasn't been able to renew her California driver's license since 2004 because two different federal agencies have two different birthdates on file for her (which they decline to reconcile). Can the courts intervene? Sadly not, says the Ninth Circuit, as Congress delegated exclusive power over naturalization to the executive branch (to make the process easier for immigrants).
- Church group enjoys religious, recreational use of stream that flows from desert oasis in Nevada through the group's retreat property. Oh no! The feds redirect the stream away from the property. Ninth Circuit: The church can't sue a Fish and Wildlife officer in her personal capacity.
- Eleventh Circuit: It should go without saying that a Butts County, Ga. sheriff's deputy who lost his home to foreclosure should not have thrown the new owner's agents, who were going about their business in lawful fashion, in jail. And yet we must say it.
- Alabama corrections officers beat an inmate to death. Suppress defendant (now-former) officer's confession to the FBI? Eleventh Circuit: He waived his Garrity rights, which prevent public employees' statements to investigators (uttered under threat of sanction) from being used by prosecutors, so no.
Until last week, Alabama forbade its citizens from selling caskets and other funeral merchandise unless they first obtained a funeral director's license (an endeavor that takes years) and built a funeral home (and endeavor that costs hundreds of thousands of dollars). IJ challenged the law on behalf of cemetery owner Shelia Champion, who offers green burials in a wild, untended forest, and who wants to sell inexpensive, biodegradable caskets and shrouds. A new law signed by the governor frees Champion to do just that and spells the end of the funeral directors' decades-old monopoly on casket sales, mooting the lawsuit. Read more about the case here.