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 Center for Judicial Engagement just released its second installment of an annual review that probes particularly soaring examples of judicial engagement and particularly searing examples of judicial abdication. It's a congenial read for the convivial reader. Click here to read. And click here to give last week's podcast a listen.
- Patent holder: You know how people go through their mail and throw out junk based on who sent it? We own the idea of doing that with a computer. Federal Circuit: That is not a patentable idea. Concurrence: And even if it were, the asserted patents would disrupt a huge amount of online communication—and are therefore barred by the First Amendment.
- Allegation: The NSA is collecting all or nearly all private messages between U.S. citizens communicated via Google, Yahoo, Microsoft, and other companies' services. Gov't: Not so. The program only targets specific foreigners located overseas. Third Circuit: Plaintiff has sufficiently alleged harm to his interests, which is not to say he has standing to proceed. On remand, the district court may wish to allow for some limited discovery that might shed light on the scope of the program.
- State investigator obtains indictment of nurse for neglecting patient at Frankfort, Ky. facility by testifying falsely to grand jury. (Among other things, he said she had not ordered lab tests that she had indeed ordered.) A state judge dismisses the case. Can she sue the investigator? Sixth Circuit: Absolute immunity.
- The U.S. admitted 10,000 Syrian refugees this year. Fearing terrorists might be among them, the governor of Indiana banned them from settling in the state. Seventh Circuit: There's no evidence for the guv's "nightmare speculation." Indeed, Syrians admitted in 2015 have settled in Indiana (and other states) without incident. So no enforcing the ban while the suit proceeds.
- Allegation: Among other indiscretions, U.S. Fish and Wildlife researcher gave voice to prurient thoughts about student while the two were alone in Alaskan wilderness. After the trip, the student arrived in Minnesota to start Ph.D. program and discovered she'd been assigned to share an office with the researcher, where pestering persisted. Researcher: The university didn't provide me sexual-harassment training, so she can't sue me. Eighth Circuit: Not so. No qualified immunity.
- In which the Eighth Circuit affirms a 25-year sentence for former acting director of cybersecurity at the U.S. Dept. of Health and Human Services, who accessed child pornography on a website seized and then briefly run by the FBI.
- After it emerged that hundreds of graduates of U.S. academy for foreign military personnel committed atrocities abroad, activists began tracking graduates' careers and Congress mandated reforms. In 2005, however, the DoD ceased its practice of releasing names of students and instructors. Ninth Circuit: Out of legitimate concern for their well-being. Dissent: The gov't introduced no evidence to justify its concern, and now there's no verifying officials' assurances that the reforms are working.
- Years ago, Elbert County, Colo. officials discovered that they had lost their zoning regulations and map. Instead of re-passing a zoning code, they just had a county planner do his best to recreate the lost documents, without holding the public hearing required by Colorado law for zoning-law changes. Aggrieved property owners sued for due-process violations after discovering they'd been spending lots of money complying with a zoning code that nobody had actually adopted. Tenth Circuit: The county may well have violated something, but it wasn't the Fourteenth Amendment.
- Owasso, Okla. officer fired for stepping on handcuffed arrestee's head, striking arrestee in the face with his elbow—but is reinstated by state appeals court. Can the officer sue city officials for releasing video of the incident, purportedly in retaliation for his union activities? The Tenth Circuit says no. (Related: The officer will soon face trial for a separate instance of excessive force.)
- When sonography students at public college expressed misgivings about requirement that they submit to transvaginal ultrasounds, staff belittled them and threatened to have them banned from area hospitals. Eleventh Circuit: Which could have been retaliation for protected speech. Moreover, students can press Fourth Amendment claims even though the search in question was neither administrative nor investigatory.
- Back in July, the Eleventh Circuit overturned a Miami nightclub owner's convictions on all but one count arising from scheme wherein Eastern European women lured men staying in luxury hotels to his club to buy wildly overpriced drinks. This week: No need for a panel rehearing, the owner isn't guilty on the last wire-fraud count either. (Fourteen other defendants (probably): Man, we should not have pled guilty.)
- Financial adviser takes advantage of elderly clients to the tune of $142k. District court: I'd sentence her to time served if she could come up with the $142k, but, as she cannot, she's going to prison instead. Eleventh Circuit: Conditioning one's freedom on her ability to pay is probably unconstitutional, but there's no need to reach that issue. It's certainly not permissible under federal sentencing guidelines.
Terry and Ria Platt's son was caught with cash and a small amount of marijuana in their car—something that does not give rise to forfeiture in Arizona. But Navajo County prosecutors, who stand to reap the proceeds, want to take the car anyway. When the Platts petitioned for their car back, prosecutors rejected their paperwork (because the words "under penalty of perjury" were not included along with their signatures) and labeled the forfeiture "uncontested," a designation that prevents the Platts from objecting in court and allows the government to proceed with a process that the Arizona Supreme Court admits "virtually assur[es] a forfeiture." This week, the Platts joined forces with IJ to challenge the constitutionality of Arizona's forfeiture machine. Read more about the case here.