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.)
This week, the Supreme Court refused an invitation to rubber-stamp prosecutorial misconduct, reining in prosecutors who intentionally discriminated on the basis of race during jury selection. Bravo, says Evan Bernick of the Center for Judicial Engagement. See Evan's article here.
Read on, friends.
Nurses' aides at Kingston, Pa. clinic threaten to slash tires, punch faces of other aides suspected of being disinclined to join union. Union wins election. NLRB: The threats, some of which came from an aide who had recently been in a knife fight, were jokes and unlikely to be taken seriously. So the election results stand. D.C. Circuit: Not so.
By law, members of educational institutions who make public-records requests are eligible for reduced fees. Gov't: Teachers, but not students, are eligible. So a Ph.D. student must pay full freight ($900) for a search for documents related to polygraphs. D.C. Circuit: No, she mustn't. (But the DOD need not release the documents, lest the information fall into the hands of subversives.)
Bank of America sold subprime assets to Fannie Mae and Freddie Mac, but, says the Second Circuit, the government failed to prove bank officials knew those assets would not be investment-quality at the time that they were delivered, a necessary element of fraud. So verdict overturned, and the bank need not pay a $1.2 billion penalty.
The FCC has not completed mandatory reviews of rules meant to promote diversity in broadcast-company ownership (among other aims) in nearly a decade. Indeed, commissioners have not settled on a working definition of minority- or women-owned. Third Circuit: We'll not vacate the rules (yet). Instead, the agency must take action pursuant to mediation overseen by the district court.
A spate of perceived police misconduct has meant hard times for Terry (the 1968 Supreme Court decision sanctioning warrantless stop-and-frisks), but it remains good law that can defuse tension on the streets, writes Judge Wilkinson, concurring in a Fourth Circuit decision letting in evidence obtained from the frisk of a Wheeling, W.V. man.
A Wake Forest, N.C. detective failed to disclose on search warrant application that confidential informant (who purchased contraband from the defendant) also stole money from the sheriff's department, among other material omissions. Fourth Circuit: Suppress the evidence.
Man takes ecstasy, suffers debilitating stroke. His insurer declines to pay for his medical care. Fifth Circuit: The ecstasy wasn't consumed on the advice of a health practitioner, so, under his policy and the Texas Insurance Code, the insurer needn't pay.
Army officer, a lieutenant colonel, engages prostitute advertised online as a 19-year-old. In fact, she's underage. Now-former officer: I was conducting scholarly research. Jury: Sex trafficking of a child. Fifth Circuit: No reason to disturb the jury's verdict.
In 2013, Saginaw County, Mich. officials banned electronic devices that can record audio or video from a government building containing courtrooms and executive and legislative offices. Man: I would like to record but do not wish to be fined or jailed. Sixth Circuit: Plaintiff hasn't shown a credible threat of prosecution so cannot raise constitutional claims.
Chicago says individual peddlers need to have licenses to prevent "fraud"—but what kind of "fraud" can someone even get up to when they're selling you a magazine about baseball? This Seventh Circuit panel has no idea, but since the preliminary-injunction record is insufficient to decide the point, the district court will have to figure it out in the first instance.
Milwaukee police surround car they suspect is illegally parked within 15 feet of (unmarked, snow-covered) crosswalk. One of the car's occupants, has a gun despite being a felon. Seventh Circuit: So back to prison for him. Dissent: This is a case of parking while black—police used the parking violation as a pretext for a warrantless seizure, which violates the Fourth Amendment.
Lawyer with Cook County State's Attorney's Office tells man that subpoenaed documents (related to his malicious-prosecution claims against Chicago) no longer exist. But wait! They exist. Can the lawyer appeal the $35k fine and judicial censure imposed by the district court? The censure was warranted, says a Seventh Circuit panel, and as for the fine, the county paid (so no appealing it).
Two witnesses to Chicago murder both identify the same man, a stranger, in photo arrays. He's convicted. Yikes! His trial attorney did not interview six witnesses who say the man was at a barbecue at the time of the shooting. Ineffective assistance and grounds for habeas relief? State court: No. Seventh Circuit: Maybe. Let's have an evidentiary hearing.
St. Paul police officer tells evangelical Christian preacher that he's not welcome at an annual Irish fair in public park. He leaves. City officials indicate that he'll be allowed to preach at subsequent fairs. Eighth Circuit: So he doesn't have standing to sue the city, the police chief, or the police officer in her official capacity. But he can sue the officer in her personal capacity.
San Diego police summoned to apartment complex to investigate men with guns. Instead, they encounter a family barbecue. They point assault rifles at the family (including young children) and handcuff many of them, pushing a pregnant woman to the ground and tearing a man's rotator cuff in the process. They search the family home without a warrant or consent. Ninth Circuit: No qualified immunity.
Anaheim police summoned to apartment complex to investigate man with gun. They encounter man with what turns out to be a BB gun. Ninth Circuit: A jury might conclude the officers unreasonably killed the man moments after giving him conflicting orders, but they are entitled to qualified immunity on the Fourth Amendment claims. The state law claims were erroneously dismissed, however.
Private prison company settles class action, agrees to increase staff at Kuna, Idaho corrections facility. The company reneges, falsifies staffing records. Ninth Circuit: No reason to alter the fines the district court ordered (in the event of continued noncompliance) or to lower the fees awarded to plaintiffs' attorneys.
Three years ago, the IRS seized $68,000 from a nearly 100-year-old family business, Vocatura's Bakery, in Norwich, Conn. because its owners deposited cash in the bank in increments of less than $10,000. Despite a 2014 policy change, whereby the IRS promised to stop seizing money from small businesses that merely "structured" their deposits without evidence of any other crime, the IRS did not return the money. Indeed, in February a prosecutor demanded that the Vocatura brothers plead guilty to criminal structuring charges and agree to up to four years in prison. The brothers declined, but rather than prosecute, the government subpoenaed every business document the business generated over the last eight years, so that agents could launch a new investigation. This week, just hours after IJ filed suit, the IRS returned the $68,000. The retaliatory tax investigation continues, however, and so the Vocaturas will continue to fight. Read more here.