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 nursing student punished for off-campus speech; the CFPB's unconstitutional structure; the right to intrastate travel; and compelled speech in the context of abortion.
- Maine state legislator, the speaker of the house, obtains job offer from charter school. The offer is rescinded after the governor, a political enemy of the speaker's, threatens to withhold the school's discretionary state funding. First Circuit: The speaker cannot sue the governor for retaliation.
- Prosecutor likens convicted murderer, an African-American of large physical stature, to a "caveman," "King Kong," and a "beast of burden" and alerts jurors to the fact that he had sex with a white female prison guard. An all-white jury imposes the death penalty. Fourth Circuit: The racially coded language undermines trust in the judicial system. Remanded for resentencing.
- Federal law permits "agreements" whereby employees must pay dues or join a labor union as a condition of employment. State officials, however, are expressly permitted to ban such agreements. Sixth Circuit: In the absence of a state ban, officials in Hardin County, Ky., may enact a local ban.
- Arson investigator investigates poorly, and an innocent Wexford County, Mich., man winds up in prison for several years. Can he sue the investigator? There's no evidence the investigator intended to fabricate evidence or that he withheld evidence he knew to be exculpatory, says the Sixth Circuit, so no.
- In 1949, the federal gov't deeded large parcels in eastern Ohio to the state's care on the condition that the land be used for flood control, conservation, and recreation. Recently, Ohio officials allowed fracking on the land. So must it revert back to federal ownership, as anti-fracking activists who discovered the deed restriction claim? No, says two-thirds of a Sixth Circuit panel.
- Chicago police officer conspires with informant (a drug dealer) to kidnap, rob drug dealers and convinces the feds to drop an investigation into the informant's other activities, which include murder. Seventh Circuit: Conspiracy convictions affirmed.
- Minneapolis police espy car idling in a high-crime area and decide to check on it. Would a reasonable person, on seeing police approach after activating their patrol car's "wig wag" (rather than full-on emergency) lights, feel free to leave? Indeed so, says the Eighth Circuit. So the occupants weren't seized (until later), and there is no need to suppress the evidence.
- Fortuna, Calif., officer shoots naked mentally ill man twice, killing him. The officer claims the man was standing and swinging a police baton, but the autopsy and dashcam video indicate the man was shot in the back while he was on the ground. Ninth Circuit: No qualified immunity.
- Thanks to new California rules, egg farmers face a choice: retrofit their hen housing so as to ensure hens have sufficient living space (a costly endeavor) or exit California's market. Ninth Circuit: The six states challenging the rules do not have standing (but perhaps could if they brought a new suit).
- Federal law allows farmers to grow genetically engineered crops after they have demonstrated to the feds' satisfaction that they are unlikely to be "plant pests." Ninth Circuit: Which preempts a Maui County, Hawaii, ban on such crops.
- "The Court stands ready and willing to defer to agency expertise and discretion," but not on a fact record this flimsy, says the Tenth Circuit (over a dissent), rejecting a new Consumer Product Safety Commission rule about rare-earth magnets.
- Pre-trial detainee breaks his arm. Pickens County, Ala., corrections officials insist he pay for corrective surgery himself. He goes 15 months in their custody with a "frank non-union of the humerus." Eleventh Circuit: He can sue several officials for deliberate indifference to his medical needs.
Americans face a steadily increasing array of fines and surcharges when they enter the justice system (even when they're innocent), such that even minor infractions can lead to long-term debt and impoverishment. Across the country, governments are using fines and fees to meet revenue goals connected only distantly, if at all, to the pursuit of justice. It's a worrisome trend that portends the further breakdown of relations between police-cum-revenue agents and the communities they are meant to serve. The Supreme Court has a chance to address the issue this session. Click here to read IJ's amicus brief urging that course of action.