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.)
If David Adier had hung an American flag outside his hair salon, he'd be in the clear. But since he instead put up a flag promoting his business, Hoboken, N.J. officials have taken him to court, seeking to collect $40,000 for violating the city's sign code. Which is entirely unconstitutional, says Erica Smith of the Institute for Justice, in light of the Supreme Court's decision in Reed v. Town of Gilbert last year. Read more here.
Last week, Robert Everett Johnson joined us on the podcast to talk Chevron deference and a pair of Second Amendment cases. Click here to listen.
- In 2013, a West, Texas fertilizer storage facility exploded, killing 15 and leveling part of town. The facility had been exempt from OSHA's hazardous-chemical regulations because it was classified as a retail operation. OSHA: Well, no more. We're rewriting the exemption. D.C. Circuit: Not without giving notice to the public and allowing for comments.
- In 2006, the Second Circuit ruled that New York state corrections officials' practice of adding post-release conditions to convicts' sentences without a judge's say-so was unconstitutional. Policymakers ignored the decision for nearly two years. Second Circuit: And three of them can be held personally liable for that.
- Second Circuit: To comply with Chinese export controls, Chinese manufacturers of Vitamin C supplements must violate U.S. prohibition on price fixing. At least that's what the Chinese gov't says, and we defer to them. So no need for the manufacturers to pay the $147 million awarded to their U.S. customers.
- Prior to the start of public meetings, Rowan County, N.C. legislators invite attendees to stand and bow their heads for, on the vast majority of occasions, a Christian prayer. Which does not violate the Establishment Clause, says two-thirds of a Fourth Circuit panel.
- Nonprofit posts files online that allow people to print gun components using 3D printers. State Dep't: Foreigners can access the files, so the nonprofit is "exporting" weapons, which is illegal without our permission. Nonprofit: May we have permission? State Dep't: No. Fifth Circuit (over a dissent): No need to allow the nonprofit to post the files while their constitutional claims go to trial. (In the meantime, they are still available on third-party sites, including The Pirate Bay.)
- On wiretap, FBI agent overhears gang leader order murder. Police find the target in Avondale, La. within an hour. Yikes! He has contraband on him. Suppress the evidence? District court: Yes. Fifth Circuit: No.
- Convicted murderer orders copy of victim's death certificate—for use in appeal, he says. Pontiac, Ill. corrections officers confiscate it. Seventh Circuit: Officials presented no evidence he instead wanted it as a trophy, and it's clearly established that officials cannot withhold inmates' mail without a solid reason, so no qualified immunity.
- Man accosts three hijab-wearing women on the street. He departs, but not before a bystander calls police. Police find man; put him in joint lock, handcuffs, and squad car; and then book him for disorderly conduct. Wait a tick! Minnesota law requires officers to have personally witnessed a misdemeanor if they're going to arrest (sans warrant). City: The officers didn't arrest him; the bystander did, by virtue of filling out a citizen's arrest form that police provided. Eighth Circuit: Qualified immunity.
- Dakota County, Minn. officials charge prisoners $25 per day, pursue former inmate seeking to have his $3,504.77 debt discharged in bankruptcy court. Eighth Circuit: The debt is not so much a penalty for wrongdoing as it is a fee meant to allow the county to recoup some of its costs. So the former inmate need not pay.
- Immigrant advocates file class action in district court arguing immigration judges' inability to appoint counsel for children facing deportation is a due-process violation. Ninth Circuit: It might be, but the class action is a no-go. Individuals must wait until they've lost in immigration court and then appeal directly to us. Judge McKeown, concurring in her own majority opinion: The lack of representation is a crisis, and the other branches can and should fix it.
- If the primary purpose of San Clemente, Calif. border-patrol checkpoint is to enforce immigration laws, then officers do not need individualized suspicion to detain motorists. But if, as plaintiff argues, its primary purpose is to enforce drug (and other non-immigration) laws, the checkpoint violates the Fourth Amendment, and the meth found in his vehicle should be suppressed. Ninth Circuit: The district court erred in not permitting discovery on this point.
- Tustin, Calif. police order man to lie down. He declines, continues to walk away. Police order him to remove a hand from his pocket. As he complies, an officer shoots him twice, killing him. He was unarmed. Ninth Circuit: No qualified immunity.
- Permanent resident from Moldova declines police order to stop his vehicle. Which is a crime of violence, says the gov't, so we're deporting him once he's finished his five-year sentence. Tenth Circuit: The definition of "crime of violence" is unconstitutionally vague.
- And in en banc news, the Ninth Circuit will reconsider its denial of qualified immunity to San Diego officers who unleashed a police dog into a dark office after work hours where it bit a sleeping worker who had unknowingly triggered an alarm.
Missouri requires African-style hair braiders to spend thousands of dollars and 1,500 hours learning cosmetology techniques that are entirely irrelevant to braiding. This week, a federal district court upheld the law, even though the state provided no evidence that it safeguards the public in any way. Indeed, the court held that the government did not need such evidence to win; mere speculation that the law advances some salutary purpose renders it constitutional under the rational-basis test. To the Eighth Circuit! Learn more here.