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.)
In a New York Times column, legal luminary Linda Greenhouse, who has oft criticized judicial engagement, praises two recent decisions in which (says she) judges were "highly attentive to facts" and "call[ed] out legislatures for what they are really doing, not just what they say they are doing." That sure sounds like an embrace of judicial engagement. What to make of all this? Evan Bernick of the Center for Judicial Engagement weighs in here.
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- Allegation: Madison, Conn. cop alerts local officials to her supervisors' practice of assigning themselves unnecessary overtime shifts, starving the department of funds for much-needed equipment. She's fired. Second Circuit: Could be retaliation for protected speech. No qualified immunity for police officials.
- Prosecutors did not disclose evidence corroborating the alibi of man convicted of a 1991 murder, thereby transforming a "powerful" witness for the defense into a "damning" one for the prosecution. Nor did they disclose a statement by the key eyewitness that she recognized the murderer from her high school, which the man did not attend. Third Circuit (sitting en banc): Set him free or give him a new trial.
- A police officer recklessly omitted evidence favorable to the accused from a probable-cause report, says the Third Circuit, which led to charges against a Bucknell University student for indecent assault. But had the statements been included, there still would have been probable cause to arrest, so the student's false-arrest, malicious-prosecution, and other claims cannot proceed.
- In 2012, Philadelphia officials banned non-commercial advertisements at the airport, purportedly to enhance revenues and avoid providing a forum for controversial speech. Must officials provide some evidence the ban achieve—or is meant to achieve—these goals? Philadelphia: No. Third Circuit: Yes.
- A Kentucky rule that forbids judicial candidates from making misleading statements—as distinct from knowingly lying—chills free debate and so falls afoul of the First Amendment, says the Sixth Circuit, as do several other canons in the state's Code of Judicial Conduct.
- Michigan's sex-offender registration law, which prevents offenders from working or living within 1,000 feet of a school and requires them to update the authorities in person whenever they (among other things) move or change jobs, is much like banishment and public shaming, says the Sixth Circuit. So its retroactive application to plaintiffs violates the Ex Post Facto Clause.
- Allegation: In 2007, SWAT officers raid Detroit home, rough up its non-resisting occupants. No contraband found. To this day, the authorities have not identified the officers involved. Jury: Two officers the plaintiffs managed to identify were raiding elsewhere in the neighborhood on the night in question, so aren't liable for the instant excessive-force claims. Sixth Circuit: No reason to revisit the verdict.
- By Michigan law, folks with outstanding felony warrants are not eligible for food benefits. But the state's list of wanted felons contains false positives, and plaintiffs, who are not wanted for criminal wrongdoing, find themselves unable to obtain benefits. Sixth Circuit: The district court did not err in ordering a permanent injunction nor in certifying a class.
- Grand Chute, Wisc. officials order union members to remove large inflatable rat from public right of way (near business that had not conceded to the union's requests). Seventh Circuit: The town's ordinance as written is constitutional, but officials' enforcement of it might not be. Dissent: No need to remand for trial. Officials plainly violated the First Amendment.
- Illegal immigrant comes to America, starts a family, pays taxes, and is generally an upstanding citizen for many years. Yikes! She used someone else's SSN to obtain employment. Is the crime one of "moral turpitude," for which deportation is mandatory? Difficult to say, says the Seventh Circuit, remanding for more proceedings. Judge Posner, concurring, ventures into the "lexical mud" and finds that the concept of moral turpitude "approach[es] gibberish."
- Lincoln, Neb. police pull over double amputee, point guns at him. Unable to exit the vehicle as commanded, the motorist falls face-first onto the pavement, where he is handcuffed and remains while a (fruitless) search of his vehicle proceeds. Eighth Circuit: Police should have known that the bald, middle-aged driver was not their suspect, a young man with braids (and, presumably, legs). No qualified immunity.
- Anaheim, Calif. police officers approach citizen who flees immediately, shedding what turns out to be a glass pipe and cell phone as he runs. An officer shoots him dead. Jury: Which wasn't excessive force. Ninth Circuit: New trial. The jury was prejudiced by testimony about the deceased's gang membership and recent meth use.
- Hotel-workers union champions Los Angeles ordinance that requires certain hotels to pay at least $15.37 per hour. Hotels not subject to the law include those that hire union labor. Ninth Circuit: Federal law does not preempt the ordinance, so a preliminary injunction is not appropriate.
- Kansas Highway Patrol officers who searched a Colorado resident's car on the basis of said residency (and other equally unsuspicious conduct) violated the Fourth Amendment, says a divided Tenth Circuit panel. No qualified immunity for the officers.
- Concurring in his own Tenth Circuit majority opinion, Judge Gorsuch calls for an end to Chevron deference, a doctrine that directs judges to abdicate their judicial duty and that encourages agents of the executive branch to wield powers reserved for the judicial and legislative branches.
- DeKalb County, Ga. police summoned to home where unstable father brandishes a kitchen knife, flees from a tasing, and then is shot dead as he reemerges with the knife. Eleventh Circuit: Qualified immunity on most of the family's claims, but a jury should decide whether the shooting was appropriate.
To raise capital, small-time brewing operations often sell the right to distribute their beer in a given region to a single distributor. In 2013, Texas legislators banned such sales at the behest of the distributors lobby—forcing craft brewers to give away their distribution rights, which can be worth millions of dollars, to distributors. Even worse, distributors remained at liberty to sell the rights amongst themselves. IJ teamed up with a group of craft brewers to oppose the law, and last week, a Texas state judge struck it down as an unconstitutional violation of economic liberty. Read more about the case here.