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.)
Responding to parent complaints, local school officials in Virginia banned a transgender student from using the boys' bathroom. The Supreme Court recently granted review of the case. Back in April, we talked about the Fourth Circuit's decision on the podcast (the discussion starts at 6:05).
- War of words betwixt prominent rappers 50 Cent and The Game—and their respective retinues—escalates, results in shootings at homes, offices, vehicles, and into crowds. A record-label owner's 14-year-old son is slapped around; the assailant is murdered. Second Circuit: New trial for the record-label owner (serving life for unrelated drug crimes) on murder-for-hire charge.
- Police arrest partygoers en masse at potentially abandoned Brooklyn, N.Y., apartment. Second Circuit: It's not clear they were trespassing, and, even if they were, their conduct was not illegal under state law unless they were knowingly trespassing. So could be two partygoers' claims for false arrest have merit.
- Fraud suspect forwards email to his accountant that implicates the suspect's lawyer in the fraud. Yikes! Accountant's counsel accidentally turns over the implicating email to investigators. Is the email protected by attorney-client privilege? The district court said no, but we don't have jurisdiction to tell you, says the Third Circuit.
- Allegation: Woman makes to film violent arrest of juvenile, Baltimore police drag her out of her car by the hair, punch her in the back of the head. She's arrested and must comply with pre-trial release conditions for nearly a year before bogus charges against her are dropped. She sues the officers, loses. Fourth Circuit: New trial. Her prior arrests were irrelevant, unduly prejudicial to the jury.
- Woman summons police to Saluda, S.C., home for help retrieving car keys from a nettlesome relative. She is arrested for cursing within hearing distance of a church. Fourth Circuit: The law, which is limited to fighting words, is neither unconstitutionally overbroad nor unconstitutionally vague.
- Things that are illegal in Texas: A retailer asking optometrists to post the hours during which they will see patients; relaying patient requests for expanded hours to optometrists; leasing office space to optometrists on the condition that they work a minimum number of hours; anything that could be construed as "attempting to influence … office hours of an optometrist." Fifth Circuit: But perhaps plaintiffs cannot recover any money from Wal-Mart for violating the aforesaid.
- Allegation: St. John the Baptist Parish, La., detective detects drugs after using flashlight to pry open handcuffed suspect's mouth, putting him in a chokehold. Excessive force? The detective is entitled to qualified immunity, says the Fifth Circuit.
- In Michigan, if you take a photo of your completed ballot and post it to social media, your vote will not count. A First Amendment violation? We doubt it, says two-thirds of a Sixth Circuit panel, so officials can enforce the law during the election (and plaintiff can press his claim afterward).
- Stool pigeon prevents Poles' perfidious plot to purloin purveyor's precious stones. Seventh Circuit: Punishment affirmed.
- To prevent truckers from driving excessive hours, federal law requires electronic tracking devices in commercial trucks. Seventh Circuit: Warrantless inspections of data generated by the devices may or may not be a search. Regardless, they do not violate the Fourth Amendment.
- Plaintiffs: Cedar Rapids, Iowa's red-light cameras are meant to raise revenue at the expense of constitutional rights. Eighth Circuit: City officials think the cameras deter bad driving, and there's no need to weigh the evidence because rational-basis review. But some claims can go to state court.
- Ninth Circuit (over a dissent): The district court committed no error in declining to allow Nevada rancher's lawyer of choice to defend against charges arising from 2014 armed standoff over federal agents' attempt to remove cattle grazing on public land.
- Allegation: For tax withholding purposes, Starbucks estimates its baristas earn 50 cents per hour in tips and deducts that amount from their paychecks. Class: Neither federal nor Oregon law authorizes any such thing. Ninth Circuit: The Tax Injunction Act and the Anti-Injunction Act bar most of the class's claims. The rest of the claims go to state court. And also the claims that are barred.
- Man adopts vegetarian diet in order to impress a woman. He's later arrested for stalking said woman, spends 20 months in jail before court dismisses all charges. While in jail, man requests jailers accommodate his diet; Cobb County, Ga., corrections official declines his request. Eleventh Circuit (over a dissent): Can't sue over that.
- And in en banc news, the Fourth Circuit will reconsider whether Rowan County, N.C., legislators' practice of opening public meetings with Christian prayers and encouraging audience participation traduces the Establishment Clause.
It's been nine months since the DEA and San Diego police raided James Slatic's medical-marijuana business and seized the business's assets, and still no one has been charged with a crime. James scrupulously followed the law, but his business remains shuttered, and his 35 employees are out of a job. Even worse, five days after the raid, San Diego police also seized $100,000 in personal funds—not only from James, but also from his wife and their two daughters, who have nothing to do with the business. The Slatics joined forces with IJ last week to get their money back and put an end to the abuse of civil forfeiture. Read more about the case here.