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.)
An essential role of the judiciary is to ensure that when the government limits freedom, there is a logical, defensible reason for the limitation. So says Evan Bernick of the Center for Judicial Engagement, countering a scholar who argued this week that there is no such thing as "rational legislation" and that demands that the government rationally justify its actions are "pernicious." Click here to read Bernick's missive.
Polygraph tests are notoriously unreliable, and so it's reasonable for a defendant to refuse one. But might knowledge of such a refusal unfairly prejudice a jury against a defendant? So much so that a new trial is required, says the dissent to this denial of en banc review from the Seventh Circuit. We discussed the original panel decision on the podcast.
Two D.C. shoppers divulge their zip codes at the request of clothing-store cashiers. And then nothing happens. D.C. Circuit: So the shoppers don't have standing to file suit, even if D.C. law prohibits retailers from inquiring after credit-card customers' addresses.
Allegation: Columbia University officials failed to investigate a possible sexual assault, instead accepting the accuser's unsupported narrative while disregarding and declining to seek out evidence favorable to the accused. Second Circuit: Could be sex discrimination. The district court should not have dismissed the case.
Falls Church, Va. officers arrive at suspect's home with arrest warrant. His mother answers the door, tells officers she'll get him. Cops believe she is actually convincing him to flee, but he comes forth minutes later. Fourth Circuit: Which hardly amounts to obstruction of justice on the part of the mother. So she can sue over her arrest even though officers obtained a warrant for it.
Despite ICE rule requiring the presence of a female officer, male officer transports female detainees unescorted. He sexually assaults them. Can the women sue? Fifth Circuit: Can't sue the private contractor running the detention center, the officer, or the officer's supervisor because the prison performs a federal not state function. Can't sue ICE because officials weren't (sufficiently alleged to have been) aware of the risk of misconduct. But the district court should reconsider whether the women's state-law claims (against the contractor, officer, and supervisor) belong in federal court.
Alerted by his wife to a possible theft at their home during July 4th party, Cleveland cop leaves the city, confronts suspect at his suburban home. A second Cleveland officer forces the suspect to a squad car. Allegation: The officers beat, choked the suspect when he declined to enter the vehicle and then shot him dead when he broke free momentarily. Sixth Circuit: No qualified immunity.
Motorist crashes into ditch, putting an end to high-speed chase. Allegation: Though he is perhaps unconscious and certainly not making threatening movements, Lebanon, Tenn. police shoot, kill him moments after the crash. Sixth Circuit: No qualified immunity for the officers or the city.
Seconds after announcing their presence, SWAT officers knock down apartment door, tear out windows, and ignite flashbang grenade. The grenade gravely injures suspect's mom, who says she'd been asleep on an air mattress. Excessive force? Jury: It's unfair to ding two officers when the blame falls on Chicago PD as a whole. So no. Seventh Circuit: No need for a new trial.
At drug convict's sentencing hearing, judge opines on riots in Milwaukee that delayed his deployment to Vietnam as well as more recent riots in Baltimore, laments the state of the convict's neighborhood, and notes the convict has children by several women. Seventh Circuit: One might reasonably perceive a lack of fair sentencing.
Los Angeles police tell murder suspect they have incriminating surveillance footage. He tells them he no longer wishes to speak but proceeds to make inculpatory statements (and later learns there is no other hard evidence against him). Ninth Circuit: The interrogation should have stopped. Habeas granted. Dissent: In context, it's clear he was expressing frustration, not invoking his Miranda rights.
Online newspaper reports on then-emerging story: An unknown porn star has tested positive for HIV. Alongside the story, the paper publishes photo of well-known performer who is not HIV positive. Defamation? The performer's suit is not a Strategic Lawsuit Against Public Participation, says the Ninth Circuit, so the question can go to a jury.
Albuquerque, N.M. police officer handcuffs, arrests 13-year-old student whose repeated burping is the source of much mirth amongst classmates. Tenth Circuit: Qualified immunity. Dissent: The law might occasionally be a ass but not this much of a ass.
Might the recently renamed Florida National University be easily mistaken for the more-established Florida International University, and so infringe on or dilute FIU's trademark? Indeed not, says the Eleventh Circuit. Among other reasons, the acronyms of 12 other Florida institutions of higher education also contain "F" and "U."
Marin County, Fla. school officials discover champagne bottle on bus arriving at senior prom, detain all 38 students on board until they can be breathalyzed, which takes nearly two hours. They all pass, but they miss prom. Eleventh Circuit: The officials are entitled to qualified immunity.
Twenty-six states require African-style hair braiders to obtain licenses that require spending hundreds or thousands of hours in classes, which cost thousands or tens of thousands of dollars and often teach little or nothing about braiding. Licensing is an enormous hurdle for workers of modest means, and, as a new study from the Institute for Justice shows, has little impact on public health and safety. Indeed, braiding, which is an ancient tradition, is remarkably safe. According to data from state licensing boards, among nearly 10,000 braiders, just 95 had complaints filed against them over a seven-year span. Of those, only one complaint came from a consumer. Click here to read the report.