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.)
Occupational freedom has long been treated as a "nonfundamental" right, but trends in the courts and in constitutional scholarship suggest that a fundamental transformation is under way, writes Clark Neily of the Center for Judicial Engagement in The Yale Law Journal. Click here to read.
This week on the podcast: sex-offender restrictions, Stingrays, and a Speedy Trial Act violation.
- Hunters challenge new ban on bringing elephant trophies back from Tanzania. Feds: Plaintiffs failed to apply for a permit that we announced we would not grant, so they can't sue. D.C. Circuit: They can sue.
- New Hampshire legislators shorten time period for minor parties to gather signatures required to get their candidates on the ballot from 21 to seven months. An effort to rein in ballot clutter or to kneecap potential rivals? No need for an "ambitious frolic" into such questions, says the First Circuit; there is a rational basis for the law.
- Teenager does not heed police order to put away cell phone. Poughkeepsie, N.Y. officer: I was worried he would throw the phone at me, and he took two steps away from me (an attempt to flee). Teen: I was trying to call my mom (a corrections officer). Jury: No probable cause for the stop or arrest; beating him up was excessive force. Second Circuit: Affirmed. Pay the teen $200k.
- Meanwhile: Another officer bends the above teen's friend over the hood of patrol car. Officer: Not sure how his jaw got broken. I didn't mean to hurt him. Jury: So it's not excessive force. Second Circuit: New trial. The jury received erroneous instruction as to what constitutes excessive force.
- Fourth Circuit: Even assuming that federal prohibitions against unlicensed firearm dealing implicate the Second Amendment, those prohibitions survive intermediate scrutiny. Therefore, the conviction of Montgomery County, Md. man who sold guns to undercover officer in a parking lot is affirmed.
- Mother's testimony is the only evidence that father murdered infant. Hamilton County, Ohio, prosecutors fail to disclose that mother was herself a suspect, among other evidence favorable to the father's defense. Sixth Circuit (over a dissent): Troubling, especially in light of the county's "consistent history" of Brady violations, but his conviction stands.
- What procedures constitute due process for a public university student accused of sexual assault? Sixth Circuit: We see no problem with a procedure where the accused enjoys no presumption of innocence, a lawyer can be present but cannot participate, cross-examination of witnesses is limited to written questions submitted to the hearing officers (with no follow-up allowed), and the accuser is allowed to make a "victim-impact statement" even before the accused has been found guilty of the offense.
- Are student athletes at over 120 colleges and universities entitled to the minimum wage for the hours they spend training and competing? Seventh Circuit: No. Concurrence: But maybe a different set of plaintiffs, namely scholarship athletes in sports that generate billions of dollars, would have an argument.
- Kansas City, Mo., man spends 14 hours in custody after police espy him walking in the street, which is illegal if a sidewalk is available. Man: There's no sidewalk where I was stopped, a fact the officers could easily have verified by stepping around a truck blocking their view of the roadside. Eighth Circuit: The officers are entitled to qualified immunity.
- No reasonable jury would believe a suspected pot dealer's claim that Garden Grove, Calif., police stole $350,000 worth of diamonds out of his room, says the Ninth Circuit, given the paucity of evidence (his word and a five-month-old appraisal for the diamonds). But he can press his excessive force-claim.
- Undercover FBI agents encourage "manipulable, conflicted kid" of Somali descent to blow up Portland, Ore., street festival, provide him with truck and fake bomb. He attempts to detonate the bomb. Entrapment? The Ninth Circuit says no. Nor was warrantless interception of his email unconstitutional, as he was corresponding with a foreigner abroad who was the true target of the surveillance—and who was not protected by the Fourth Amendment.
- Suspect invokes right to attorney; questioning ceases. Later, at detention center, he is queried about his gang membership so as to ensure he's placed in appropriate quarters. Ninth Circuit (over a dissent): The gov't can't use that admission as evidence in the RICO case against him.
- Lake County, Fla., school officials reject student application to form Gay-Straight Alliance at public middle school. Eleventh Circuit: Federal law requires secondary schools (that receive federal funds) to give extracurricular clubs equal access to school resources, and the middle school is a secondary school.
- Drunk guy with obvious head injury calls state trooper a "butt-head dick," among other aspersions, and expresses wish that the trooper gets shot in the head. Minnesota Court: Which was not a terroristic threat. Conviction overturned.
- Off-duty police officer (6'5″ and 310 lbs.) working the door at fraternity party punches, chokes student (5'7″ and 140). Jury: Excessive force for which his employer, Prince George's County, Md., is liable. County: The officer was moonlighting without permission and in express violation of policy, so we're not liable. Maryland Court: You're still liable.
The Arkansas Constitution says that monopolies are "contrary to the genius of a republic, and shall not be allowed," but in Little Rock one company controls all of the city's 120 taxicab permits. Last year, IJ client Ken Leininger applied to bring a second taxi service to the city, but officials rejected his request out of hand (even after acknowledging Ken meets all the relevant health-and-safety requirements). This week, a state judge ruled that the constitution means what it says and struck down the city's "Monopoly Rule," which required applicants to convince officials that their entry into the market would not have an effect on the monopoly company. Read more here.