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.)
If the meaning of the Constitution is uncertain (or obscured by bad precedent) on a given question, how should an originalist proceed? A recent D.C. Circuit opinion on the CFPB's sole director points the way, writes Evan Bernick of the Center for Judicial Engagement. Click here to read.
This week on the podcast: due process on campus, elephant trophies, drug forfeiture, and puppycide most foul.
- Massachusetts state legislator pushes legislation increasing particular department's budget. Seven months later, the department hires his wife—part of a pattern of patronage-based hiring. First Circuit: All of which is distasteful and perhaps a violation of state law, but the department's top officials aren't guilty of racketeering.
- Armed ICE agents surround cook in Wellesley, Mass. restaurant's boiler room, confirm he's not the illegal immigrant they're looking for. But he is an illegal immigrant. Cook: I answered their questions under duress. Suppress the evidence? First Circuit: Deport him.
- Second Circuit: The feds need not release a variety of documents pertaining to drone strikes, including a memo on the legal justifications for strikes that killed U.S. citizens who had not been tried for their alleged crimes.
- Allegation: According to fellow officers, Battle Creek, Mich. police openly brag about shooting dogs, tally their kills by putting stickers on their lockers. Sixth Circuit: "Unsubstantiated testimony from a few officers … is neither persuasive nor meaningful." Plaintiffs, whose dogs were killed in a SWAT raid, can't sue.
- Allegation: Man spends over a year in jail before charges dropped. After his release, Clark County, Ky. officials bill him $4,000 for the cost of his imprisonment. Sixth Circuit: Officials didn't seize his money; they just sent a bill. So there's no due-process violation.
- Plaintiffs sue a defendant that does not exist. Intended defendant inexplicably shows up and litigates the case anyway as if they'd been properly named, and nobody says anything until the Seventh Circuit points out on appeal that they've just been shadowboxing the whole time.
- Can a district court impose sanctions on an attorney for raising a claim that's squarely foreclosed by precedent because he hopes that precedent (absolute prosecutorial immunity) will be overturned on appeal? That's maybe not what we would have done, says the Seventh Circuit, but the sanctions stand.
- Linn, Mo. public college requires all students to submit to drug testing. A Fourth Amendment violation? District court: But for a handful of programs (which require, for instance, students to operate heavy machinery), the school presented no evidence that would justify suspicionless searches. Eighth Circuit (2015): Pee tests for everyone. Eighth Circuit (en banc): What the district court said. (We discussed the now-reversed 2015 decision on the podcast.)
- Ninth Circuit (sitting en banc): The Constitution does not prevent California officials from charging nonresidents up to three times as much for commercial-fishing licenses as state residents. (We discussed the original (now-reversed) panel decision on the podcast.)
- California legislature carefully gerrymanders minimum-wage law to single out three companies for special treatment. Ninth Circuit: This looks like a sop for labor unions, and that kind of political horse-trading is not a legitimate governmental interest even under the rational-basis test.
- Operating against a backdrop of anticompetitive practices in the contact-lens industry, Utah passes a law prohibiting contact-lens manufacturers from imposing minimum-price requirements on contact-lens retailers. The manufacturers sue for violations of the dormant Commerce Clause, but the Tenth Circuit (over a dissent) sees nothing amiss.
- Disturbed patient rips out IV and oxygen tube, walks off while ranting and bleeding profusely. Hospital staff summon police, who tase the patient in full view of the staff (who do not ask them to stop). The patient dies. Tenth Circuit (on remand from the Supremes): The police are entitled to qualified immunity.
- Guards at Oglethorpe, Ga. prison escort inmates (who had hit guards) to area without cameras, severely beat them, lie about it. The feds prosecute the guards, obtain convictions. Guards: We should have been allowed to cross examine cooperating witnesses more thoroughly. Eleventh Circuit: So as to invite jury nullification, which we shan't allow.
- Bus companies: Our permits give us an exclusive right to run buses over particular routes in Connecticut. State transportation officials: We want to bring in new companies to run those routes, so we're using eminent domain to seize your permits. Connecticut Supreme Court (over a dissent): The statute says transportation officials can seize all kinds of stuff—but not bus franchises.
- Man takes $15 cash out of New Orleans police bait car. It's his fourth offense—all of them nonviolent—so he's sentenced to life without possibility of parole—the mandatory minimum. Louisiana Court: Unconscionable and unconstitutional.
- Sex offender (who slept with a 14-year-old as a 20-year-old) challenges Krum, Tex. residency restrictions that bar him from living in his parent's house—or nearly anywhere else in the city—as it's within 2,000 feet of a place where children commonly gather. City officials: He doesn't have standing to challenge the ordinance. Texas Court: He does.
Eight months after seizing Arlene Harjo's car, Albuquerque, N.M. officials returned it this week, purportedly (and despite previous assurances to the contrary) because the police stop that led to the seizure occurred outside city limits. Arlene is challenging Albuquerque's abusive forfeiture practices, which have persisted even after state legislators passed a law requiring a conviction before officials can forfeit property. (Arlene has never been charged with a crime.) Despite the return of the car, her challenge to the system will go forward. Read more here.