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.)
Should the Supreme Court reconsider Auer deference, the doctrine that demands federal judges defer to agencies' interpretations of their own regulations—even if the result is that people seeking to peacefully plan their affairs can only guess at whether they will later face criminal or civil penalties? Justice Clarence Thomas says yes, and Evan Bernick of the Center for Judicial Engagement heartily agrees. Read Evan's missive here.
This week's podcast features the return of the Con Law Warrior, Clark Neily.
- To eliminate improper race-based considerations when making promotions decisions, local officials in Massachusetts adopted new exam for police officers. Consequently, a disparate impact: whites are promoted at higher rates than blacks and Hispanics. Plaintiffs: Even if there was no intent to discriminate, officials are violating the Civil Rights Act. First Circuit: There is no violation.
- Witness to murder outside Hartford, Conn. nightclub identifies perpetrator, is murdered in her driveway before trial. Can her mother sue state and local officials who were allegedly tipped off that her life was in danger? Second Circuit: No.
- Developers convert historic, abandoned Philadelphia factory into residences. Must the retrofit comply with federal housing standards meant to ensure access for people with disabilities? Third Circuit: The statute is ambiguous, and HUD's interpretations of it are reasonable; therefore we defer to them. So yes.
- Man applies for permission to build an M-16-style machine gun. The ATF approves. But wait! Machine guns are illegal. Man surrenders the weapon to the ATF, sues. Third Circuit: The Second Amendment does not protect the possession of machine guns.
- Border Patrol agent attempts to arrest drug suspect. The suspect (a teenager) fights, gets free, and runs toward Mexico. The agent shoots him in the back, killing him. Fifth Circuit: His parents can sue neither the agent nor the United States.
- Texas prison officials initially allow, later disallow communal pipe smoking (a Native American religious practice); it's unhygienic. Inmate: I contracted Hep C, methinks from a pipe (while it was allowed). The gov't failed to protect me. Fifth Circuit: Cannae sue for that.
- Wyoming, Ohio police enter woman's home to investigate complaint that she's too drunk to care for her kids (who are not yet home from school). Police: We got consent to enter from a visitor. Sixth Circuit: According to the plaintiff, police neither got consent nor did they have probable cause a year later when they arrested her (over a separate incident), so no qualified immunity on those claims.
- Christian school purchases empty office building in Upper Arlington, Ohio, applies for permission to rezone it. Officials: We want high-income professionals to use the building (so as to boost income-tax revenues). Application denied. Which might fall afoul of a federal law that protects land use as religious exercise, says two-thirds of a Sixth Circuit panel.
- Nebraska regulators investigate a financial adviser because of his political speech (disparaging POTUS and other officials) and thereafter heavily scrutinize his and his employer's practices. (Internal emails reveal the regulators' intent to "hang him high.") A First Amendment violation? We can't say the district court was clearly wrong in holding that the regulators' actions wouldn't deter an ordinary person from continuing to speak, says two-thirds of an Eighth Circuit panel.
- Audit: Minnesota law-enforcement officers accessed the state's motor-vehicle database nearly 200 times for a peek at the personal information of a female attorney who sued various local governments. Eighth Circuit: Defendants can try to prove they had a legitimate law-enforcement purpose at trial, but they don't get qualified immunity.
- Alameda County, Calif. bans gun stores within 500 feet of residentially zoned district, alcohol purveyor, school, or daycare, which plaintiffs allege amounts to total ban on new gun stores. A Second Amendment violation? Quite possibly, says two-thirds of a Ninth Circuit panel.
- Pizza chain fires employee with Down syndrome, who had worked with the assistance of a job coach (paid for by a third party), at its Farmington, Utah location. EEOC: Illegal discrimination. Tenth Circuit: The district court erred in not allowing the employee to join the suit.
- Audit: Florida law-enforcement officers accessed the state's motor-vehicle database over 500 times for a glimpse of a female (former) deputy's personal information. Eleventh Circuit: The statute of limitations began to run when the (alleged) violations occurred, not when plaintiffs found out about them. So this suit (one of many) is dismissed.
- Alabama death-row prisoner had a "nightmarish" childhood. Was his lawyer remiss in failing to investigate and present evidence of this adversity during sentencing? Eleventh Circuit: Could be. Give him an evidentiary hearing.
- And in en banc news, the Fifth Circuit will not consider reinstating a preliminary injunction shielding Google from a broad subpoena from the Mississippi AG's office over purported copyright, and other, violations. Nor will the Eighth Circuit reconsider its ruling against a morbidly obese machinist from Kansas who sued over a rescinded job offer.
Cumberland, Md. officials are threatening to use eminent domain to oust a dozen homeowners—mostly elderly, lifelong Cumberland residents—from their neighborhood. In their place, officials imagine a chain restaurant and parking lot. But it's not too late! The residents, with help from a local preservation nonprofit, have suggested alternative plans that will allow new development without seizing any homes. A petition in support of the residents has garnered over 96,000 signatures to date. Find the petition here.