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 a thoughtful and provocative book, "Law's Abnegation: From Law's Empire to the Administrative State," Professor Adrian Vermeule argues that judicial deference to administrative agencies is lawful, desirable, and in some sense inevitable. Evan Bernick of the Center for Judicial Engagement does not concur. Read Evan's review essay, "Lions Under the Bureaucracy" ("Highly recommended" by the Legal Theory Blog) for a comprehensive summary and criticism of Vermeule's arguments and a proposed alternative approach.
- Death-row prisoners have their sentences vacated but are kept under death-row conditions (including solitary confinement) for years while they await resentencing. A due process violation? Third Circuit: That wasn't clearly established (so qualified immunity for the prison officials), but from now on it's unconstitutional.
- Informant tells Lincolnton, N.C. officers he bought crack from "April Smith," but there is no footage because his hidden camera was facing the wrong way. An officer locates an April Smith with a criminal record who lives 11 miles from where the sale took place, and, nine months after the sale, she's arrested. She spends 80 days in jail before charges are dropped, during which time she allegedly loses her job. Fourth Circuit (over a dissent): Officers lacked probable cause for the arrest, so no qualified immunity.
- Man arrested for sexually abusing his five-year old sues Harford County, Md. investigator, who neglected to include in the arrest-warrant application that the child initially indicated no abuse took place and that a doctor found no physical evidence. (A grand jury (which presumably knew these facts) indicts the man, but the state does not bring him to trial). Fourth Circuit (over a dissent): No qualified immunity for the investigator, who is also accused of helping to induce the child into falsely accusing her father (by means of suggestive, leading questions).
- Allegation: Though he passes physicals, CIA employee with narcolepsy is repeatedly denied postings in war zones. He complains internally and to the EEOC to no avail. He's fired. Unlawful retaliation? Disability discrimination? CIA: We had legitimate, nondiscriminatory motives, but they are state secrets. Fourth Circuit: Case dismissed.
- Protestor outside Stafford, Texas abortion clinic is accused of haranguing patients as they arrive; police ultimately arrest him for failing to ID himself. Fifth Circuit: Which is not a crime in Texas unless one has already been arrested for some other infraction. No qualified immunity for the officers.
- Corporations and unions in Michigan can't make political contributions, but they can set up PACs, funded by payroll deductions, which in turn can make political contributions. For reasons that defy summary, this system is dramatically more favorable to corporations than unions. Sixth Circuit: That doesn't violate the First Amendment, but the change in law impacts existing union contracts, which likely violates the Contracts Clause.
- Feds: The President has "unreviewable authority to suspend the admission of any class of aliens." Ninth Circuit: There is no authority for that proposition. So, for that reason and others, we'll not stay the district court's order putting on hold the executive order that, among other things, bars non-citizens from seven majority-Muslim countries from entering the U.S. for 90 days.
- Police, suspicious of metallurgical thievery, drive alongside a young man and ask questions while he continues to walk. Eventually, they "request" that he stop and continue the conversation. Uh oh! He isn't stealing copper, but he is packing iron—a felon in possession. Tenth Circuit: No reasonable suspicion for the stop; suppress the evidence.
- Motorist drives at the speed limit for several blocks after Cheyenne, Wyo. officers make to pull him over. When he stops, officers surround the vehicle. He begins to pull forward again, slowly. An officer shoots him. His passengers—his partner and their infant son—are not harmed. Excessive force? Tenth Circuit: Qualified immunity.
- Via Facebook, woman threatens to carry out mass shooting in Littleton, Colo., home of Columbine High School. (It turns out the threat was hollow.) Though prosecutors recommend probation only, the sentencing judge sentences her to six months in prison. Tenth Circuit: While the judge has (fully disclosed) personal connections to the 1999 Columbine shooting (his kids went to the school and his family knew some of the victims, among other things), he was not required to recuse himself.
- Corrections officer at Kansas City, Kan. juvenile facility fails random drug test, is fired. Did the test violate his Fourth Amendment rights? It did not, says the Tenth Circuit; probable cause is not necessary to conduct such tests on folks in sensitive positions like his.
- San Diego police approach man on bicycle in park after dark without a (legally required) light. He pedals away; officers catch him and allegedly beat him. California court: Could be they also digitally probed his rectum; a jury might think his rights were violated.
- Over 30 police officers close rowdy Baltimore nightclub, send club goers on their way. A disagreement breaks out amongst two groups of club goers in a nearby parking lot. A man dressed in black urges the partiers to move along, perhaps aggressively. He's sucker punched, knocked down, and stomped on. From his back, he fires a handgun wildly. Police return fire, kill him. (One of his assailants is killed as well, though it's not clear by whom.) Yikes! The man in black was a cop. Maryland court: No need for a jury trial; the officers' actions weren't unreasonable.
- And in en banc news, the Tenth Circuit will not reconsider its holding that a Ten Commandments monument that graces the lawn of a Bloomfield, N.M. municipal building is an unconstitutional endorsement of religion. We discussed the original panel decision on the podcast.
Until this week, if you wanted to massage horses or other animals for a living in Arizona, you had to spend four years and hundreds of thousands of dollars going to veterinary school, where you would not be taught how to massage an animal. That made no sense, so, in 2014, IJ teamed up with three experienced massage practitioners and challenged the regulation, and this week, the board officially dropped its interpretation of the state's vet-licensing statute (which makes no mention of massage). No longer will animal massage practitioners face criminal prosecution just for earning a living. Click here to read more.