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.)
Peat-mining company would like to mine peat on Minnesota property. The Army Corps of Engineers issues a determination that the property is a regulated "wetlands," which cannot be disturbed without a federal permit. Must the company spend years and hundreds of thousands of dollars applying for the permit (which is virtually certain to be denied according to a Corps representative) before seeking judicial review of the determination? In ruling unanimously to the contrary, the Supreme Court did the rule of law a good turn, argues Evan Bernick of the Center for Judicial Engagement. See Evan's article here.
This week on the podcast, special guest Robert McNamara throws his weight-and some weighty ideas-around. Read on, friends.
Consignment business that sells kids' clothing relies on parents who volunteer to help set up the sales (and get first pick of the merchandise in exchange). DOL sends a letter informing business that all those volunteers are actually employees-start paying them or face big fines. District Court: Telling a company that it's breaking the law and threatening fines for future violations isn't reviewable. D.C. Circuit: Au contraire.
In 2003, agents seize tax advisor's records related to two of his clients. They also seize records that fall outside the scope of their warrant on the advisor's personal finances and non-suspect clients. Later, agents begin to suspect the advisor himself of wrongdoing and obtain new warrant to search the files not responsive to first warrant. Owner: Retaining that data violated my Fourth Amendment rights. Second Circuit (en banc): The agents acted in good-faith reliance on a valid warrant, so we're not going to address the constitutional issue. Conviction affirmed. Dissent: The Fourth Amendment forbids general warrants, which is what the majority condones here.
Pittsburgh bans certain kinds of speech within 15 feet of all health-care facilities. Third Circuit: Officials may have means of eliminating bad behavior and ensuring access to health facilities short of forcing plaintiffs, who seek to engage in peaceful prayer and "sidewalk counseling" about abortion, to refrain from speaking. The suit should not have been dismissed at this early stage.
Investigators do not need a warrant to obtain personal information you voluntarily convey to a third party like a bank or hotel. But do you voluntarily convey the hundreds of data points cell-phone providers compile about your whereabouts each day? Indeed so, says the Fourth Circuit, sitting en banc, so no warrant needed.
Did Austin, Tex. police arrest plaintiff three times because he interfered with police business or because he annoyed the cops by filming them? Plaintiff's version of events differs significantly from the officers', but that's not enough for his suit to go forward, says the Fifth Circuit. A magistrate and a grand jury determined the arrests were supported by probable cause, and plaintiff didn't show those proceedings were tainted by police misconduct.
Woman spends evening in frigid, wet jail cell after she declines to testify that her boyfriend, the defendant in a criminal case, hit her in the face. Her denial (though consistent with previous statements), discommoded Ascension Parish, La. prosecutor, who (allegedly) orders her arrest. Fifth Circuit: She can sue the prosecutor over the warrantless arrest, but the prosecutor gets absolute immunity for subsequently pursuing an (allegedly) bogus charge.
Arrestees in Kankakee County, Ill. who claim they were strip searched and then immediately released from custody have a case, says the Seventh Circuit. Though the Supreme Court sanctioned such searches of arrestees in 2012, it was because the individuals in that case were to be housed with other inmates.
In an attempt to show why racial epithets are harmful, Chicago public school teacher says the n-word in front of students. He's disciplined. Seventh Circuit: The city's ban on teachers using racial epithets, no matter the context, is (borrowing a phrase from the late Justice Scalia) stupid but constitutional.
During 500-year rain, debris builds up under railroad bridge, blocking drainage, which causes flooding in Bagley, Wisc. Seventh Circuit (2012): Residents cannot recover from the railroad. Seventh Circuit (2016): A new, nearly identical suit filed in Arkansas (which has no connection to the case) is vexatious, so plaintiffs' attorney must pay sanctions.
Eighth Circuit (2015): When Officer Fear directed Marco the drug doggie to sniff inches from a Cedar Rapids, Iowa apartment window, that was an illegal search. Suppress the evidence. Eighth Circuit (2016): When Officer Fear directed Marco to sniff the front door of an apartment (in the same development), that too was an illegal search. But no need to suppress the evidence. In the former case, the window had a bush and grill in front of it-in the latter, the door was accessible via a shared, public walkway (so the good-faith exception applies). We discussed the 2015 decision on the podcast.
Ex-cop/TSA agent obtains aspiring model's contact info from model-networking website, lures her to a fake audition in Miami. He and a partner drug and rape her and then sell video of it. Model: The owners of the website were aware of the scheme and failed to warn users. Ninth Circuit: A federal law that shields internet companies from liability for publishing content created by third parties does not apply here, so the suit can proceed.
For years, Arizona required public university students to contribute money to private students' association (albeit with a cumbersome "opt out" option). But after the association spent hundreds of thousands of dollars on political advocacy, state officials struck the requirement. Ninth Circuit: Depriving the association of compelled contributions might be unlawful retaliation for its political speech, so this case goes to trial. (No mention of the First Amendment rights of students compelled to fund advocacy with which they may not agree, who are not parties to the case.)
What's worse than laws so voluminous, incoherent, or rapidly changing that people cannot hope to keep track of, much less comply with them? Regulations that confound the very agencies that make and enforce them, says the Tenth Circuit, reversing a fine the feds levied on a Medicare provider, relying upon a regulation that does not exist.
Motorist and passengers attacked in Denver, injured by occupants of another vehicle. They flee to the safety of a nearby suburb, but a 911 operator (inexplicably) insists they return to the city. They do, and while the callers wait for police, whom the operator (despite promises to the contrary) had not alerted, the attackers reappear and shoot a passenger, killing him. Tenth Circuit: Qualified immunity for the operator.
Cynthia Kool offered a one-day workshop on eyelash-extension techniques at her boutique in Woodway, Tex. A salutary exercise for fun and profit or a dangerous, illegal scheme that put Texans' safety at risk? State regulators recently went with the latter because Kool, though a licensed eyelash-extension specialist, is not a licensed cosmetology instructor nor does she maintain a cosmetology school. Is it not overkill (and unconstitutional) to require Kool to master the many facets of cosmetology just so she can teach the one-as well as shell out big bucks to build a school? That's what IJ told the Texas Department of Licensing and Regulation, and last week the department relented in part, dropping the fine it had levied but refusing to rule out future enforcement actions. Read more here.