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.)
How should the next Supreme Court Justice adjudicate? Following a lively debate on Cato Unbound, Evan Bernick responds to critics of judicial engagement, explaining why engagement is a modest proposal—but a crucially important one. Click here to read.
This week on the podcast: IJ litigators Diana Simpson and Robert Everett Johnson talk ballot selfies and 3-D printer gun speech.
- Created in the wake of the 2008 financial crisis, the Consumer Financial Protection Bureau is an independent agency that vests extensive power in a single director whom the president may only remove "for cause." D.C. Circuit: Which is weird and violates the separation of powers.
- Passenger in car pulled over for lack of visible license plate light has bag with over 100 gift cards. Fifth Circuit: There is no reasonable expectation of privacy in gift cards' magnetic stripes, so an officer—and later the Secret Service—did not need a warrant to scan them.
- Detroit SWAT raids home whose residents are suspected of theft of utilities services and discover a probationer who possesses a gun. Sixth Circuit: So back to prison for him. (No word on his utilities bill. But maybe now his Fourth Amendment challenge to the raid can go forward?)
- In Ohio, juries cannot impose the death penalty without first determining that the aggravating circumstances in a given case outweigh the mitigating. Death-row prisoner: The jury at my 1986 trial received guidance from the judge on mitigating factors, but not on aggravating ones, and so could not have conducted the requisite balancing. Sixth Circuit: That's so, and it doesn't matter that counsel did not object at the time. New sentencing hearing in 180 days or set him free.
- By allowing Uber and other ride-hailing services to operate in Chicago unencumbered by regulations that have long applied to taxicabs, have city officials violated the Equal Protection Clause? The Seventh Circuit says no. This is an IJ case.
- In 2014, Milwaukee officials removed a cap on the number of taxicabs permitted to operate in the city—thereby drastically reducing the value of incumbents' licenses. A taking of property without just compensation? Not so, says the Seventh Circuit. The permit confers a right to operate a vehicle for hire, not a right to exclude others from doing so. This is an IJ case.
- Pharmacy: We have a First Amendment right to sell lethal injection drugs anonymously to state governments. Eighth Circuit: No need to rule on that. Missouri corrections officials need not reveal their supplier for a more salient reason: It would not advance the claims of death-row prisoners challenging the use of the drugs as cruel and unusual.
- To comply with federal safety guidelines, Lincoln, Neb.-based trucking company requires severely obese drivers to submit toa sleep apnea test. (The condition can lead to drowsiness on the job.) One such driver declines and is fired. An Americans with Disabilities Act violation? Eighth Circuit: No.
- Roommates invite guy they met at marijuana festival to live with them, manufacture hash oil. He accidentally blows up their Bellevue, Wash., apartment. One neighbor—the city's first female mayor—dies. Ninth Circuit: No reason to lighten the roommates' three-year sentences and $2.8 million restitution. (The would-be manufacturer got nine years.)
- Wyoming officials: The wild horse population in our state exceeds what the land can support. Horses are dying of starvation and thirst. Rangeland is being damaged. Federal law requires the feds to remove excess horses. Tenth Circuit: Hold your horses.
- Pinellas County, Fla., beachgoer declines police orders to exit water, is dragged out. As he struggles, an officer repeatedly beats him about the head, chokes him, and pepper sprays him. Eventually, he's pinned down, cuffed. Eleventh Circuit: No qualified immunity for a second officer who arrived at that point and Tasered the beachgoer five times. (He died two days later.)
- And in en banc news, the Ninth Circuit will reconsider a reprieve granted to a chronic alcoholic challenging his deportation on the grounds that "habitual drunkards" do not necessarily lack "good moral character."
- The Sixth Circuit, meanwhile, will not reconsider its decision upholding changes to Ohio's voting rules that the district court found would disproportionately prevent minorities from voting.
In 2013, the NYPD threatened to shutter Sung Cho's laundromat because undercover officers had sold stolen electronics there—not to Sung or his employees but to two members of the public. Given just days to prepare for a hearing (scheduled for Christmas Eve), Sung agreed to a settlement allowing the NYPD to conduct warrantless searches, to access his security cameras, and to impose fines and sanctions in the future without a prior hearing before a judge. Further, these conditions attach even if Sung sells the property, destroying its value to potential buyers and threatening Sung's retirement security. Last week, IJ filed a class action on behalf of Sung and other ordinary innocent people victimized by the NYPD's no-fault eviction dragnet. Read more here.