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.)
In 2011, Virginia regulators barred a hospital from opening a neonatal intensive care unit, lest it compete with another hospital's preexisting unit across town. This was a poor decision, and one that got the long-form journalistic treatment over at Reason last week. IJ Senior Attorney Darpana Sheth is interviewed.
- Washington, D.C., lets you hang signs on lampposts for 180 days, unless they relate to an event, in which case they must be taken down within 30 days after the event. Does the law discriminate against signs with event-related content? D.C. Circuit: "The fact that District officials may look at what a poster says to determine whether it is 'event-related' does not render the District's lamppost rule content-based."
- Three hospitals—one of which has a unionized workforce—merge. Unionized employees continue to receive hiring preference at unionized hospital, but, when a new position opens at the other two hospitals, nonunion employees gets first dibs. Union: That's discrimination. National Labor Relations Board: Just so. First Circuit: But no more so than the preference for union employees at the unionized hospital.
- Out-of-state motorist ticketed for speeding in Liberty, N.Y. (pop. 9,885), crosses out "Liberty" and writes "Tyranny" on payment form as well as "F- YOUR SH-Y TOWN B–ES." His payment is rejected, so he must appear in court—where he is arrested, charged with "aggravated harassment" of the town clerk. District court: He can sue the prosecutor who filed the charge (and who has since settled). Second Circuit: But qualified immunity for the arresting officers.
- Allegation: Jersey City, N.J., police wish to break up party, tell man working as security guard to leave. He demurs but does not resist. A group of officers beat him, fracturing his skull, in front of a crowd of 100 people. District court: This goes to trial. Third Circuit: Seems about right; the officer can appeal denial of qualified immunity afterward.
- Anonymous tipster sees man loading, concealing gun in high-crime area. Ranson, W.Va., police stop man, ask if he has any weapons. Man gives only a "weird look" in response. Is that reasonably suspicious enough to justify a frisk, given that concealed carry is broadly legal in the state? It is, says the Fourth Circuit, sitting en banc. (We discussed the original panel's now-reversed decision on the podcast.)
- Citizen accuses Gretna, La., city council members of accepting illegal campaign contributions. Council chairman objects. Police officer forcibly removes citizen from council meeting. Fifth Circuit: The officer is immune from First Amendment suit, as he was just following orders, but the chairman may be liable.
- Allegation: Cleveland officer accuses motorist of driving on suspended license. The motorist demurs; in fact his license is not suspended. The officer drags him from his car, slams him against the windshield, arrests him. Sixth Circuit: no qualified immunity.
- Over the course of a year, Detroit court officer pockets $50k tendered to him by defendants to pay outstanding civil judgments. Officer: I should get to keep 7 percent as wages and compensation. Sixth Circuit: Go directly to jail. Do not collect 7 percent.
- U.S. law enforcers may not arrest drug suspects on foreign soil without the cooperation of local law enforcers, but, if agents disregard this prohibition, arrestees cannot sue them (rather they're subject to internal discipline). Seventh Circuit: So a Nigerian senator and purported heroin trafficker (also related to the inspiration for the TV series "Orange is the New Black") who claims the DEA attempted to abduct him cannot sue—because no private right of action.
- Allegation: Rapid City, S.D.. officer employs arm bar, a grappling technique whereby one hyperextends another's elbow (possibly snapping it backward), on father who questioned the arrest of his son too insistently. Eighth Circuit: qualified immunity.
- Disbarred attorney who made his name defeating police departments in brutality lawsuits sets his sights on a new injustice—Los Angeles' requirement that one pay a refundable fee to challenge parking tickets. Ninth Circuit: All of his arguments fail.
- To settle class action, debt-collection agency agrees to pay each named plaintiff $1k, class counsel $68k—and to make a $35k donation to charity on behalf of 4 million unnamed plaintiffs, who lose right to sue in the future. Ninth Circuit: That's a no go.
- Consumer Financial Protection Bureau investigates for-profit lenders created by several Native American tribes. Ninth Circuit: which is totally within the Bureau's jurisdiction. We have consistently held that generally applicable laws apply to Native American tribes unless Congress expressly provides otherwise, and Congress did not do so here.
- Allegation: At 5:30 a.m., Clayton County, Ga., SWAT officer tosses flash-bang grenade into drug suspect's bedroom; it lands on his pregnant girlfriend, who suffers serious burns. (Police find a tenth of an ounce of pot.) Eleventh Circuit: qualified immunity.
- And in en banc news, the Second Circuit—over four dissents—will not rehear an earlier panel decision that the Stored Communications Act does not apply outside the United States and cannot be used to force Microsoft to disclose customer emails stored on a server in Ireland. (Panel decision here.)
Last week, the South Dakota Senate unanimously approved a bill that would permit African-style hair braiders to work without obtaining a cosmetology license. The state requires aspiring cosmetologists to complete 2,100 hours of training and coursework (the most burdensome requirement in the country), but little, if any, of it is relevant to braiders. Should the bill become law, South Dakota would become the 21st state to free the braiders. Read more here. In related news, IJ is currently challenging the application of Missouri's 1,500-hour cosmetology training requirement to hair braiders. Click here for more on that.