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.)
What to make of a recent Ninth Circuit gun-rights decision in which the majority reaches back to the 13th century (and finds that laws against carrying concealed weapons in public have been nearly universally upheld)? Evan Bernick of the Center for Judicial Engagement has some thoughts. Read more here.
Readers may also be interested in "Reason's Republic," a spellbinding bit of scholarship Bernick recently penned on constitutional interpretation and judicial practice. It is a review of Professor Tara Smith's important book, "Judicial Review in an Objective Legal System." Read on, friends.
Fired for being (twice) intoxicated on the job, a mechanic for the D.C.-area transit authority undergoes treatment, applies for his job back. But his bosses refuse, allegedly because of his alcoholism. An ADA violation? Indeed, says the D.C. Circuit.
A Massachusetts law requiring handguns to have load indicators, which indicate whether a round is chambered, is not unconstitutionally vague, says the First Circuit, so no late-model Glocks (whose indicators aren't sufficiently indicative) in the Commonwealth.
After discussions with NLRB, Norwood, Mass. car dealership revises employee handbook. NLRB: The new dress code, which prohibits some employees from wearing "pins, insignias, or other message clothing," still restricts labor rights. First Circuit: Just so. Dissent: Pity employers who want their employees to look nice. "[T]he Board and the courts have lured businesses into a legal bog."
Farmington, N.Y. officials allow family to build otherwise illegal pool, fence, and deck so as to accommodate disabled child. If the child leaves, however, the improvements must be torn out within 21 days. Second Circuit: Could be the cost of removal is excessively burdensome (and so a Fair Housing violation).
Husband waiting to pick up wife from work at Houston elementary school is deemed suspicious; police are called. He declines to provide ID to officer; officer declines to provide reason for the request. Husband spends 30 minutes handcuffed in a squad car. Illegal detention? Fifth Circuit (over dissent): Qualified immunity.
Mom incarcerated for 37 days after rehab staffers erroneously tell Lauderdale County, Tenn. investigators that she helped her son abscond from his court-ordered rehab program. Sixth Circuit: Bummer. But there's no constitutional violation.
Man fires four shots into Springfield, Ohio home where he believes a rival suitor is staying. A bullet strikes and kills the woman he wished to woo. He pleads guilty to felony murder but asserts his innocence during sentencing. Sixth Circuit: Habeas denied.
Man visits Illinois elected official's office and avers, during hour-long tirade, that he is "ready to start shooting people." Police go to his home, take away his guns. A psychologist reports that he's not dangerous, and over a year later officials return his guns. He sues: That was too long a wait. Seventh Circuit: The official he sued is blameless, so we need not address the open question of how speedily the gov't must address petitions for restorations of individuals' Second Amendment rights.
Fort Wayne, Ind. officials reject proposed public-bus advertisement because the would-be advertiser, a women's health nonprofit, takes a position on a controversial issue, abortion. Seventh Circuit: But the proposed ad itself "lacks the faintest suggestion of a political, religious, or moral aim," so officials must allow it.
Grand juror who weighed whether there was probable cause to indict Ferguson, Mo. police officer for shooting and killing a teenager would like to speak publicly about the experience but fears criminal sanctions. Eighth Circuit: The district court erred in dismissing the case before some relevant issues have been addressed in state court.
Allegation: Without a warrant, Harvey County, Kan. deputy enters yard, shoots unthreatening dog. It dies on plaintiffs' front porch. Deputies move the body off the property to obscure the chain of events. Deputy: I thought the dog killed some livestock. Plaintiffs: A different dog did that, and it was put down a year before events in question. Tenth Circuit: No qualified immunity.
Chile-pepper producer attempts to trademark the name "Hatch" which is perhaps akin to a winemaker attempting to trademark "Napa." Other pepper producer: You probably don't even grow your chiles in Hatch Valley, N.M. Tenth Circuit: The would-be trademarker must comply with discovery, despite their many curious arguments to the contrary.
Albuquerque, N.M. volunteer reserve police officer does not have authority to make arrests but nonetheless arrests over a dozen women for prostitution. He prosecutes them himself (without authority) in accordance with local custom that police try their own misdemeanor cases. Malicious prosecution? No, says the Tenth Circuit. Though the state court vacated the convictions, we can't say that it did so for reasons indicative of the women's innocence.
Plaintiffs: The SEC's enforcement actions against us are wrongheaded, and the administrative-review process in which we're currently mired is unconstitutional. District court: That's likely so. Have some injunctive relief. Eleventh Circuit: Vacated. Plaintiffs can sue after the administrative process has run its course.
News from the Institute for Justice: To earn a living as an African-style hair braider in Kentucky, the law required one to spend 1,800 hours and up to $20,000 pursuing a cosmetology license, even though the training was entirely irrelevant to African-style braiding. It was an absurd situation, and state legislators put an end to it this spring, joining 16 other states that have also exempted hair braiders from cosmetology licensing requirements. "This is a wonderful day for all the braiders," said Kine Gueye, a hair braiding entrepreneur, at a signing ceremony in Frankfort this week. "We can now go about and be free to work and earn a living without fear." Learn more here.