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.)
Is "the rule of law" just an empty phrase trotted out when convenient? Hardly, argues Evan Bernick of the Center for Judicial Engagement, but thanks to the federal judiciary's failure to uphold the rule of law, it's in danger of becoming one. Read Bernick's missive here.
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It is illegal to hunt endangered species without a permit, but captive-bred Scimitar-Horned Oryxes and two other antelope species have been fair game since someone in Congress slipped a one-sentence provision into a 1,500-page appropriations bill that exempts them from the usual permitting process. D.C. Circuit: It's not an administrative-procedure violation if Congress legislated it.
Man and woman chat while boarding plane. He decides she is the one for him. She feels otherwise. He repeatedly leaves his seat to talk to her during the flight, disregarding woman's wishes and flight attendants' admonitions. An FBI agent eventually restrains him. Man: The FAA cannot fine me for my behavior (because non-violent). D.C. Circuit: That is false.
Man files complaint against police for failing to investigate reports of child abuse; man then arrested and charged with endangering child. During the arrest, an NYPD officer allegedly pummels and chokes him for up to two minutes while two others look on. Second Circuit: It is possible the other officers are liable for failing to intervene, though the arrest was legit. Dissent: No way police had probable cause to arrest.
Pursuant to 2007 court ruling, the feds rescind a rule that barred inmates from publishing articles under a byline. Yikes! In 2013, a corrections officer throws resident of Brooklyn, N.Y., halfway house into solitary after he publishes under a byline. Second Circuit: Qualified immunity.
Members of the Green, Libertarian, and Constitution parties secure district court order that Pennsylvania's ballot-access law violated their constitutional rights. The gov't appeals on the grounds that plaintiffs sued the wrong people and that the order is "incoherent." The Third Circuit was not impressed with either of these arguments.
Third Circuit (2015): A federal law requiring producers of sexually explicit content (even if created for private, noncommercial use) to maintain extensive documentation to ensure performers are of age is constitutional-except for the part allowing investigators to enter producers' homes and places of business without prior notice to inspect the records. Third Circuit (2016): In light of new Supreme Court precedent, the whole thing may have to go.
Allegation: Huttonsville, W.V. corrections officers put inmate in solitary until he consented to having his (professionally implanted) penis marbles surgically removed. Fourth Circuit: Which isn't consent. His Fourth Amendment claim should not have been dismissed.
Memphis, Tenn. restaurateur pleads guilty to drug charge. Oh no! His lawyer wrongly told him he wouldn't be deported. Restaurateur: I'd have gone to trial if I'd known that. Sixth Circuit: Evidence of guilt was overwhelming, so conviction affirmed even if jurors might have given him a pass (as many do with first-time, small-time, non-violent offenders).
Inmate in medical ward at Lexington, Ky. jail has seizure. Guards purport to perceive defiant behavior, apply pressure to his jaw (which would ordinarily put one in fear of one's neck snapping), pepper spray him, pin him down, and otherwise forcefully restrain him. He dies some minutes later. Sixth Circuit: No qualified immunity.
Health insurer that insures more than 60 percent of Michigan's privately insured patients demands that hospitals charge higher rates to competing insurers. Many hospitals acquiesce rather than risk losing so many patients. Illegal price fixing? Mayhaps, but the district court should not have sealed key pieces of evidence or approved the settlement agreement, says the Sixth Circuit.
Nebraska drug doggie alerts on vehicle. Officers find no drugs but do find a duffel bag with many credit cards, debit cards, and gift cards. Eighth Circuit (over a dissent): No Fourth Amendment violation to scan the cards' magnetic stripes (which revealed them to be counterfeit).
San Diego County and Yolo County, Calif. prohibit citizens from carrying concealed firearms in public without a permit, which can be obtained by showing "good cause." (A standard said to allow influential people to obtain permits while ordinary citizens cannot.) Combined with the state's general ban on open carry, the "good cause" requirement amounts to a total ban on carrying guns in public for many law-abiding folk. A Second Amendment violation? An en banc panel of the Ninth Circuit says no. Dissent: States can ban open or concealed carry-but not both.
Artists transform school bus into large replica of 16th-century Spanish galleon for use at Burning Man festival in northern Nevada. While not in use, they park it on a friend's land. Yikes! The friend sells the land; the new owner sells the replica for scrap. Did the new owner violate the Visual Artists Rights Act? The Ninth Circuit says no.
Colorado voters approve amendment to the state constitution requiring that tax increases be put to a public vote. Members of Colorado's legislature sue, claiming this deprives the state of the "Republican Form of Government" guaranteed by the Constitution. Tenth Circuit: We initially found the legislators had standing, but the Supremes vacated, so we now find the opposite.
Federal law requires federal prosecutors to follow the ethics rules of the states where they practice. New Mexico has an ethics rule constraining lawyers' ability to subpoena other lawyers to testify about their clients. A simple syllogism suggests that federal prosecutors must follow that rule. Must they? Tenth Circuit (over a dissent): No-at least not for grand-jury subpoenas.
Narcotics officers mistakenly believe pastor who counsels addicts is himself involved with drugs. Dressed in plain clothes and wearing ski masks, they confront him with guns drawn at Toccoa, Ga. gas station. He attempts to drive away and is shot dead. Eleventh Circuit: No qualified immunity. The $1.64 million awarded to the pastor's widow and son stands.
After a three-year wait, a Miami Shores Village, Fla., couple finally had their day in court this week. Village officials threatened Hermine Ricketts and Tom Carroll with $50-a-day fines if they didn't tear out their front-yard vegetable garden, which they'd carefully tended for 17 years. But in 2013, officials changed the zoning code to outlaw such gardens so as to "protect the distinctive character" of the village. At the hearing, the village's lawyer argued that "aesthetics and uniformity are legitimate government purposes" that trump citizens' right to the peaceful and productive use their property. The Florida Constitution says otherwise. Read more here.