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.)
When judges reverse long-standing precedent, are they exerting arbitrary, minotaur-like power that shakes the foundations of the Republic? No, argues Evan Bernick of the Center for Judicial Engagement. Click here to read.
This week, the Supreme Court will consider whether New York's ban on calling a credit-card surcharge a "surcharge" implicates the First Amendment. We discussed the Second Circuit's ruling on the question on the podcast.
- Deported illegal immigrant returns to U.S. to care for his terminally ill common-law wife and raise their grandson, who had been abandoned by their son. He also kicks their other son, a drug addict, out of the house. The other son informs the authorities of his father's illegal status. Third Circuit (Dec. 30): In light of the too-lengthy but now-completed sentence the immigrant received, the terms of his supervised release should be relaxed. Third Circuit (Jan 3.): Hold off on that.
- Iraqi insurgents murder 12 Nepalis meant to work on U.S. military base. Families of the deceased: They had been promised (by a recruiting agency) hotel jobs in Jordan only to be forced to go to Iraq by a U.S. contractor. Human trafficking? Fifth Circuit (over a dissent): The contractor's alleged misconduct occurred abroad, and the statutes in question do not apply extraterritorially.
- Rochester, Mich. officials delay rehabilitation of historic property on spurious grounds, demand the property owner pay $40,000 and waive any legal claims before they'll consider lifting stop-work order. The owner sues in state court. The city removes the case to federal court. City officials: He can't sue because he didn't first obtain a judgment in state court. Sixth Circuit: And whose fault was that, guys? He can sue.
- Niles, Mich. officer compels arrestee to masturbate as he watches. The officer goes to prison; can the arrestee sue the city as well? No, says the Sixth Circuit; nothing in the officer's prior history put officials on notice he was such a bad egg.
- Must an Indiana law restricting automated phone calls make an exception for groups that wish to spread political messages? That would be exactly the sort of content-based favoritism we normally condemn, says the Seventh Circuit, so no.
- Reputed Chicago mobster offers "ten thousand clams" to FBI informant if he arranges to break the legs of man who gambled away a $300k loan from the mobster's associate, a landfill owner. Seventh Circuit: The landfill owner's conviction stands.
- A dissenting Judge Posner of the Seventh Circuit has a nomination for "the least competent federal agency," which in this case "railroaded" an uncounseled petitioner after "cursory, indeed farcical" proceedings.
- Since passage of 1994 Minnesota law authorizing continued incarceration of sex offenders (after they've completed their sentences) so they can undergo treatment, none of the over 700 offenders have been fully discharged from the treatment program. Plaintiffs: It's not treatment; it's a life sentence. Eighth Circuit: There is a rational basis for the program.
- Orange County, Calif. officials seeking qualified immunity: It is not clearly established law that social workers should not (in their efforts to remove a child from a parent's custody) lie, fabricate evidence, and withhold exculpatory evidence. Ninth Circuit: "No official with an IQ greater than room temperature in Alaska" could think that.
- Allegation: Mentally ill arrestee, who speaks nonsense but had been cooperative, balks when told to take off shoes. Officers at Maricopa County, Ariz. jail take him to ground, punch him in the face, tase him, choke him, and leave him unconscious in a cell. He dies. Ninth Circuit: No qualified immunity for most of the officers.
- Roosevelt County, N.M. officers search single-engine plane, discover marijuana. A state court rules the search was invalid. Charges dismissed. Can the feds still revoke the pilot's license? Indeed so, says the Ninth Circuit.
- Drunk-driving suspect is not free to go but drives away from traffic stop. Box Elder County, Utah officer steps in front of the suspect's vehicle, fires at the suspect when he declines to stop. The suspect dies. Tenth Circuit: Qualified immunity.
- At hearing to determine whether there is probable cause to proceed with criminal charges, prosecutors make use of defendant's compelled statement to police. A violation of his Fifth Amendment right against self-incrimination? Prosecutors: No, that right only exists during trial. Tenth Circuit: Pre-trial proceedings, too.
- Philadelphia officials levy $33,000-per-day fines on owner of defunct brewery building because it lacks windows and doors. Owner: I did install windows, and they were smashed within days. Pennsylvania court: The fines have naught to do with health or safety, and though officials claim numerous studies show boarded-up properties contribute to blight, they did not actually produce any such studies.
- Several writers lampoon climate scientist whom they accuse of manipulating data, lambaste his threats to sue for defamation. He sues. District of Columbia court: A jury might find defendants knowingly made false statements of fact.
Last week, Ohio Gov. John Kasich signed substantive civil-forfeiture reform into law. No longer will officials be able to take property (valued at less than $15k) without first securing a conviction. The law also shifts the burden of proof from property owners to the government and bars officials (for the most part) from turning forfeiture cases over to the feds, a common practice where state law provides more protections for property owners than federal law. Read more here.