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 Supreme Court recently ruled that a prosecutor-turned-judge should have recused himself from a death-row inmate's appeal because he had played a part in the original conviction. Hear hear, says Evan Bernick of the Center for Judicial Engagement. Read Bernick's piece here.
The Short Circuit team also produces a biweekly podcast. This week, special guest Jeff Rowes talks death by a thousand regulatory cuts.
D.C. Circuit (2014): The FCC cannot impose net-neutrality regulations on broadband providers because the FCC classifies broadband provision as an "information service," and the agency may not (per statute) regulate such services. FCC (2015): Okay, now we say broadband providers are "telecommunications" carriers. D.C. Circuit (2016): Go ahead and regulate. Dissent: The FCC's mandate is to reduce regulatory burdens and promote competition. Net neutrality whiffs on both counts.
Former Connecticut governor, a convicted felon, serves as consultant to congressional candidate's campaign, accepts pay from candidate's husband's business, so as to avoid federal election reporting requirements. Second Circuit: Which is illegal. Conviction affirmed.
Man gets drunk, steals boat, drifts into restricted waters near Newport News, Va. By way of explaining himself, he tells the authorities he was helping another man, but they got in a fight and he threw the other fellow overboard. Yikes! There is no other man. Fourth Circuit: So 14 months in prison and $117k restitution (for the cost of the search-and-rescue operation).
Drug doggie alerts on express-mail envelope. But wait! One month later, the doggie's handler, a Charleston, W.V. detective, fabricates a drug-sniff report in a separate case. So the handler's credibility is shot, and the evidence in the instant case should be suppressed? No ma'am, says the Fourth Circuit.
Bogotá, Colombia taxi drivers give DEA agent "millionaire's ride" wherein affluent-looking passengers are subjected to armed robbery. The agent escapes but not before defendant stabs him. The agent dies. Try defendant in a U.S. court? Fourth Circuit: Convictions affirmed.
Author sets up shop on the grassy knoll, sells books about the JFK assassination. Dallas police arrest him for vending in a public park, even though the grassy knoll is not a public park. Fifth Circuit: The district court should not have dismissed the case.
The DOL permits restaurants to deduct a fee from servers' tips paid by credit card so as to offset credit-card fees. Restaurant chain: We deduct a little more on top of that to pay for armored cars to bring cash frequently (so we can convert credit-card tips into cash for our servers daily, which they prefer). Fifth Circuit: Nonetheless, the Fair Labor Standards Act forbids it.
Intoxicated motorist eludes Houston police officer's handcuff attempt, walks away. Officer demands that he stop, purports to observe motorist reach for waistband, and shoots the motorist in the back, partially paralyzing him. Fifth Circuit: Qualified immunity.
Plaintiffs rent room in public-school building, hold event to inform public of the danger of Sharia law. Allegan, Mich. police shut it down while featured speaker, who holds himself out as a reformed Islamic terrorist, speaks, fearing reaction to his presence might be violent. A First Amendment violation? Sixth Circuit: Plaintiffs didn't plead sufficient facts so we need not address that.
A new Indiana law bars civil servants from holding elected office in the same unit of government. Local officials sue: We'll have to resign from elected office, which doesn't pay nearly as well as civil service. Seventh Circuit: Tough. The right to hold office isn't fundamental.
Illinois drug task force hires male police officer despite background check that reveals ties to criminals, financial difficulties. He commits misconduct, is fired. Later, the task force declines to hire a recently bankrupt female officer who is romantically involved with member of outlaw biker gang. Sex discrimination? Seventh Circuit: No, officials are entitled to learn from their mistakes. (But there are some other issues for the district court to address.)
Attorneys buy copyrights to porn films, threaten to sue folks who (maybe) downloaded illegally, and offer to settle for slightly less than the cost to mount a legal defense (relying on the accuseds' presumed unwillingness to be publicly associated with porn-whatever the merits of the case against them). The firm never litigates a case (to the merits) but secures millions of dollars from hundreds if not thousands of individuals. District Court: Copyright law is meant for starving artists, not plundering attorneys, so here's six figures' worth of sanctions. Ninth Circuit: Affirmed.
Ninth Circuit: It's likely some people who obtained marijuana from Hilo, Hawaii-based marijuana ministry lacked sincere religious objections to the nation's drug laws, so the ministers can't have their drug convictions overturned on religious-freedom grounds.
Allegation: Lakewood, Colo. police pull over motorist for minor infraction, bang their batons against her vehicle. Concerned for her safety, the motorist declines to exit vehicle immediately. They smash her window, drag her out by the hair and arms, and throw her on the now-glass-littered pavement. Tenth Circuit: No qualified immunity.
Cameroonian immigrant pleads guilty to deportable offense; ICE agents detain him once he's served his sentence. Four years later, he remains imprisoned and hasn't had a bond hearing (to determine whether he's a flight or safety risk). Eleventh Circuit: Give him a hearing immediately.
News from the Institute for Justice: In May 2013, armed agents raided Vocatura's Bakery, a third-generation family business in Norwich, Conn. and seized the bakery's entire bank account-$68,000. The alleged crime? Depositing cash in the bank in increments of less than $10,000. Believing they hadn't done anything wrong, the Vocatura brothers refused to plead guilty to criminal charges. Rather than prosecute, the gov't launched a new investigation earlier this year (subpoenaing every business document the bakery generated over the last eight years). Last month, IJ filed suit to fight the forfeiture of the $68,000, and within hours the IRS returned the money. This week, prosecutors dropped their retaliatory tax investigation as well. Read more here.