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.)
Last week on the podcast: sex-offender restrictions, Stingrays, and a Speedy Trial Act violation.
- Obtaining photo ID is not so difficult for minorities as to render Virginia's voter-ID law unlawful, says the Fourth Circuit, nor is there any evidence legislators acted with discriminatory intent when they passed the law.
- Displeased with city ordinance meant to prevent discrimination against LGBT residents, Houston pastors pursue referendum to repeal ordinance. The mayor subpoenas five pastors, demanding production of their sermons and other communications regarding the ordinance. Fifth Circuit: The pastors do not have standing to sue the mayor for First Amendment violations.
- Nashville police rummage through man's trash, discover marijuana residue. They get a warrant to search his home. Officer: Contrary to what I told the judge who issued the warrant, I had no information indicative of illegal doings at the home prior to the trash pull. Sixth Circuit: Suppress the evidence.
- Can small-town mayor—who's basically the bad guy from "Road House"—be sued for his efforts to shut down a local liquor store (including, among other things, allegedly hiring a guy to vandalize the store, resulting in a Patrick Swayze-esque street fight)? This case should go forward, says the Seventh Circuit.
- Wife sets up auto-forwarding on husband's email account. Intercepted emails (hint: not involving wife) prove useful in later divorce proceedings. Husband sues. Seventh Circuit: This probably isn't the situation Congress had in mind when it passed the Wiretap Act, but the wife may well have broken the law.
- Federal prosecutors accuse tugboat captain of negligence resulting in the death of an oil-barge crewman; the captain prevails in civil suit. Prosecutors press criminal case based on the same facts, obtain a conviction. Seventh Circuit: Can't do that.
- Displeased with city ordinance authorizing student-housing project, Columbia, Mo. residents pursue referendum to repeal ordinance. City leaders pass new ordinance to nullify the referendum to repeal the ordinance. Unconstitutional interference with the referendum process? The Eighth Circuit says no.
- Alexander, Ark. officer stops man walking in street. He disarms himself and puts his hands on patrol car but twists free as the officer attempts to cuff him. The officer shoots him in the back at close range, killing him. Eighth Circuit: No qualified immunity.
- Washoe County, Nev. social workers who took a newborn from her addict mother without a warrant are entitled to qualified immunity, says an en banc panel of the Ninth Circuit. The county might be liable, however, for its workers' complete ignorance of the need to obtain a warrant before seizing children (in non-emergency situations). We discussed the original panel decision on the podcast.
- Ninth Circuit: California's 10-day waiting period between the purchase and receipt of a firearm, which gives purchasers contemplating fell deeds time to cool off and gives officials more time than necessary for background checks, is constitutional under intermediate scrutiny.
- Staff member at Topeka, Kan. prison rapes inmate. Can the now-former inmate sue the warden for an Eighth Amendment violation? She can, says the Tenth Circuit, owing to the unusually high volume of complaints against staff and evidence that the warden consistently failed to fully investigate or meaningfully punish employee misconduct. One employee, for instance, received only a 10-day suspension for hanging a sex toy from the ceiling and caressing an inmate's ear—his third such episode of "undue familiarity."
- Allegation: Federal inspectors lie to police, say they have a court order to remove tiger cubs from Colorado wildlife refuge. Police help them break into the facility (sans warrant), but the cubs are at the vet-where the refuge owner had told inspectors they'd be. Tenth Circuit: No qualified immunity for the inspectors.
- Drunk guy drives his wife's motorcycle home from the bar—a distance of 12 blocks. Can the state forfeit the $35k bike? Illinois Court: That would be an excessive fine.
- North Carolina Court: A reasonable motorist, on seeing a uniformed police officer gesturing for the motorist to stop, would feel free to keep on driving. So no need to suppress the evidence.
It's been nearly two years since IJ asked the IRS and the CBP to turn over public records on the feds' use of forfeiture. Neither agency has complied. Indeed, the CBP rejected the request outright, and the IRS demanded over $750,000 in fees. (By comparison, the DOJ turned over its forfeiture database in just three months—and without charge—after redacting sensitive information. Click here for our analysis of that data.) This month, IJ sued both agencies for violating the Freedom of Information Act. Read more about the suit here.