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 term, the Supreme Court can—and should—strike down Missouri's Blaine Amendment, argues IJ litigator Erica Smith. Many states enacted Blaine Amendments in the 1800s to discriminate against Catholics, and today they remain the biggest legal obstacle to school choice. Click here for more.
- The Park Service's installation of bleachers on Freedom Plaza during the Inaugural Parade precludes the use of the plaza by protestors. A First Amendment violation? The D.C. Circuit says no.
- Part of New York City's water supply travels from a reservoir 110 miles upstate through a series of reservoirs, tunnels, and more. Pollutants can travel from one body of water to the next, but the EPA has not required NYC to obtain a pollutant-discharge permit (as parties that pollute U.S. waters normally must). Second Circuit (over a dissent): The Clean Water Act is ambiguous as to whether that's acceptable, and the EPA's interpretation of the law is entitled to Chevron deference.
- A jury finds that a Nassau County, N.Y. detective, among other things, planted a murder victim's hair in a suspect's van, leading to the conviction of three innocent men. They spend 18 years in prison before DNA evidence exonerates them. Second Circuit: No need to reconsider the $18 million awarded to two of them.
- Cambridge, Md. police find pot residue in trash, send SWAT into apartment at 4:30 a.m. Officers say they clearly identified themselves (which a jury does not believe) and that the resident charged them. They shoot him in the head, killing him. Fourth Circuit (2015): The city need not pay $250,000 the jury awarded to the resident's father. Fourth Circuit (2017): Or $25,000 for his attorneys' fees.
- Accident in Montcoal, W. Va. mine claims the lives of 29 miners. A jury convicts the company's CEO of disregarding safety regulations, which he views as cheaper to violate (and pay the fines) than to comply with. He receives the maximum sentence: one year in prison and a $250,000 fine. Fourth Circuit: Conviction affirmed.
- Teenage carjacking suspect chooses to represent himself after his appointed counsel admits to being unprepared on day of trial. (Alibi witnesses had not been tracked down, for instance.) He's convicted, sentenced to at least 87 years. Was his waiver of counsel voluntary? Two-thirds of a Sixth Circuit panel says yes.
- Garfield Heights, Ohio man puts up large lawn sign criticizing elected official. Officials: Signs criticizing officials must be smaller. Take it down or pay $1k per day in fines. Sixth Circuit: The city's sign ordinance, which permits some large signs but not large political signs, is unconstitutional.
- After Chicago's ban on firing ranges was struck down in 2011, officials rewrote the law, restricting them to two percent of the city's acreage, where they are not commercially viable. Seventh Circuit: Which is also unconstitutional, as is another rule that no one under 18 may enter a firing range.
- Illegal immigrant argues that Hondurans will assume he's gay because he is a middle-aged, HIV-positive bachelor, so deporting him would put him in grave danger given the violence LGBTQ individuals are subjected to there. Seventh Circuit (over a dissent): He shouldn't be deported.
- At least once a week, pretrial detainees and convicted inmates at Cole County, Mo. jail must cover themselves in sheets and blankets or go naked while their jail-issued garb is laundered, as officials only allow them one set of clothes. Eighth Circuit: Could be an Eighth Amendment violation.
- Many of Missouri's alcohol advertising restrictions "make no rational sense," says the Eighth Circuit; so a challenge to the rules, which, for instance, forbid retailers from advertising specific deals (like a two-for-one beer special) but permit general promotions (like happy hour), should not have been dismissed.
- Portland, Ore., woman accuses her soon-to-be ex-husband of rape. He's arrested but not charged. News of the arrest sparks much commentary online, harming his professional reputation. Can he sue her estate (she has since passed away) over the allegedly defamatory accusation? Ninth Circuit: Evidence that she spoke to the online commenters (whose comments were based on public arrest records) is lacking, so no.
- CEO publicly lauds his company's ethical standards, violates them by altering expense reports to cover up his pursuit of former adult actress working as hostess at company events. (His deception comes to light; he resigns; the company's stock tanks.) Securities fraud? The Ninth Circuit says no.
- Does the doctrine of equitable estoppel permit litigants, as a matter of Florida law, to enforce an arbitration agreement even if they are not a party to the agreement? Not in this case, says the Eleventh Circuit, dashing the hopes of the Kardashian sisters, who are famous.
- Man pulls over after accident, exits his vehicle holding his wallet. An Opelika, Ala. officer orders him to show his hands. He does, but video shows he brings his hands together and extends them toward the officer with his wallet visible. The officer shoots him in the gut just as he separates his hands and raises them above his shoulders. The entire incident lasts three seconds. Eleventh Circuit: It wasn't unreasonable for the officer to exit his cruiser with his gun drawn and then mistake the wallet for a gun.
- In effort to persuade tailgater to follow at a more reasonable distance, motorist displays a handgun. He pleads guilty to disorderly conduct and pays a $200 fine. Can officials forfeit the gun? Pennsylvania court: No statute authorizes it, and common law forfeiture does not exist in the state. So no.
- Maryland has decriminalized marijuana; possession of a small amount means a ticket and substance-abuse education rather than jail time. Does this mean that an officer, on detecting the odor of marijuana, no longer has probable cause to search a vehicle? Maryland high court: It does not.
- Correction: Friends, it was misleading to say that the forfeiture claim in this Ninth Circuit case was filed three minutes late. It arrived at 9:03 a.m. on the day after it was due. The staff wholeheartedly regrets the error.
Every year, law enforcement agencies forfeit billions of dollars in cash, cars, homes, and other property—often without securing a criminal conviction. How often? And what do agencies spend the money on? In a new report, IJ grades the states and the federal government on the transparency and accountability of their forfeiture programs. Click here to read the report. Separately, we're also suing two federal agencies that refused to turn over forfeiture data as required by the Freedom of Information Act. More on that here.