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.)
This week on the podcast: A SWAT raid in D.C.; a Ten Commandments monument on public property; Michigan ballot selfies; and privacy in one's pants pockets.
- To combat budget difficulties, Virgin Islands officials borrow, reduce spending, and increase taxes. It's not enough. So, passing over alternative measures contemplated in collective bargaining agreements, officials trim public employee salaries by eight percent (a measure not contemplated in said agreements). Third Circuit: Which violated the Contract Clause.
- Allegation: Dallas resident standing outside his home takes umbrage at police shining a spotlight in his eyes, retires indoors. Police take umbrage at his umbrage, exit their vehicle, draw their guns, and fire when the resident reemerges holding a flashlight they believe is a gun. No one, including resident's girlfriend and their toddler inside the home, is hit. Fifth Circuit: Can't sue over that.
- Tennessee Valley Authority officials expand the authority's authority to remove trees that are in the TVA's rights-of-way but on private property. Sixth Circuit (2014): Explain why this new policy is justified. TVA: Instead of that, we've ceased cutting down the trees at issue. Sixth Circuit (2016): Some evidence suggests otherwise, so Sherwood's case is not moot.
- Do Americans have a fundamental right to water at a price they can afford? The Sixth Circuit says no, so a class action seeking to force Detroit officials to offer income-based discounts for residential customers was rightfully dismissed.
- To residents' severe detriment, Flint, Mich., officials fail to ensure the city's water supply is potable. Residents sue a Texas-based civil engineering firm hired to retrofit the city's water-treatment plant—as well as the firm's local affiliate. Sixth Circuit (over a dissent): The case should proceed in state court.
- Gawker Media publishes article about Chicago lawyer's acquittal on rape charges and subsequent defamation case against a prominent law blog. Allegation: In the comments section, Gawker employees pseudonymously published inflammatory comments and encouraged especially vituperative comments from third parties. Seventh Circuit: One comment was defamatory. The case should not have been dismissed.
- Man confesses to 1999 murder, is willing to testify that he committed the crime solo (which is consistent with much of the evidence). But his co-defendant's counsel does not call him to the stand. The co-defendant is convicted as well. Seventh Circuit: New trial for the co-defendant.
- Oklahoma convict takes 43 minutes, some of which are apparently agonizing, to die because lethal injection was partially injected into his muscle tissue instead of his bloodstream. (Death usually takes six minutes.) Tenth Circuit: Qualified immunity for the doctor, and none of the convict's estate's Eighth Amendment claims succeed.
- Woman flees traffic stop, reaches her mother's apartment nearby. Luna County, N.M., officer catches up, tases her nine times, and breaks her ribs after she declines to "passively submit." Her mother begs the officer to stop and is tased as well. Tenth Circuit: Can't sue over that—partly because the women's lawyer failed to make a single argument (on the excessive-force claim).
- Data-security company breaches clinical-laboratory company's internet security, obtains sensitive patient data, unsuccessfully pitches its services to the lab company. Rebuffed, the security company tells the FTC that the lab's vulnerabilities resulted in potential malefactors obtaining patient data. The FTC takes the lab company to court. Eleventh Circuit: In fact, it is quite unlikely any data was stolen. Moreover, the FTC's assertion, upon which much hinges, that the definition of "likely" includes events that have a "low likelihood" of transpiring is unreasonable. So a stay of the FTC's enforcement action is appropriate.
- In which a defendant is acquitted of fraud buts gets nailed for structuring: making several cash withdrawals over the course of single day to obtain a total of over $10,000 in effort to avoid triggering bank reporting requirement that kicks in when one withdraws $10,000 or more in one transaction. Eleventh Circuit: Conviction affirmed.
- Allegation: Nahunta, Ga., police officer locks himself alone in bedroom with woman he has determined needs to go to hospital for a mental-health check. He orders her to change out of her sleeping clothes, demands she take off her shorts so that she can put on underwear, ignores requests to open the door, and touches her roughly on the shoulder to speed the process, which ultimately takes 20 minutes. Eleventh Circuit: No qualified immunity for that.
- And in en banc news, the Ninth Circuit will reconsider whether California officials, who seek to continue enforcing a ban on a particular form of alcohol advertising, must produce some evidence that the ban protects the citizenry from a cognizable harm.
In New York, merchants must never, on pain of criminal penalty, describe the slightly elevated price they charge customers paying by credit card as a "surcharge." Rather, they must describe the price difference as a "discount" for paying by cash. The genesis of the law? Credit-card companies have a strong preference for the latter construction over the former. But does the law violate merchants' free-speech rights? The Supreme Court takes up that question this session. Click here to read IJ's amicus brief urging the Court to answer in the affirmative.