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 month marks the 25th anniversary of Davis v. Grover, in which the Wisconsin Supreme Court upheld the nation's first modern school choice program. IJ Senior Attorney Dick Komer reflects on the occasion and on such programs' potential to bring the benefits of choice, already enjoyed by the well-off, to lower-income families. Click here to read.
- Union representing workers at Sausalito, Calif. restaurant purportedly does little but collect dues; majority sign petition to decertify it, but union leader persuades several workers to withdraw their signatures (perhaps by raising the specter of deportation), yet does not tell the restaurant, which proceeds with decertification. D.C. Circuit: The restaurant violated the law, but the NLRB can't order the restaurant to recognize and bargain with the union.
- Prosecutors play short clips from movie The Town, which defendants allegedly emulated by dressing as police at armed robbery of Queens, N.Y. check-cashing business, presenting an employee with a photo of her home, and pouring bleach on the crime scene. Second Circuit: The clips were not unduly prejudicial to the defendants. Convictions affirmed.
- Radiology resident at private Philadelphia hospital alleges director sexually harassed her; she is let go, and finds other programs are unwilling to hire her. Can she sue under Title IX, which prohibits sex discrimination in federally funded education programs? District Court: She should have filed under Title VII, which governs employment discrimination. Third Circuit: Medical residencies are federally-funded education programs; her (timely) Title IX claims were improperly dismissed.
- High Point, N.C. officer allows police doggie to bite unresisting homeless man twice after realizing the man is not the robbery suspect he's pursuing. Fourth Circuit (over a dissent): Qualified immunity.
- Husband pleads guilty to fraud and, over wife's objection, agrees to forfeit $3.4 million in ill-gotten gains. Fifth Circuit (notably not relying on cases allowing forfeiture of innocent persons' property): The assets were held in the husband's sole name, so, under state law, we presume he had power to dispose of them without his wife's approval.
- During prolonged interrogation, Milwaukee detectives falsely tell intellectually disabled suspect that he failed a polygraph and that eyewitnesses identified him as the murderer. He proclaims his innocence more than 140 times, but eventually confesses and spends over a year in jail before the confession is suppressed and the charges are dropped. Can he sue the detectives for coercing the confession? He cannot, says the Seventh Circuit.
- We'll give you one guess which Seventh Circuit judge thought that a cat analogy would be the best way to explain why a case against eye-drop manufacturers needs to be dismissed.
- Rock Island County, Ill. sheriff requires female pre-trial detainees to wear white underwear or go commando, lest they extract ink from colored underwear and use it to make tattoos. Seventh Circuit: There is no evidence that has ever happened anywhere. Plaintiffs' claim, that the policy mars their dignity without advancing a legitimate penal interest, should not have been dismissed.
- Officers at Stearns County, Minn. jail listen to pre-trial detainee shriek, bang his head against the door of his cell for eight hours. Deliberate indifference to his medical needs? Could be, says the Eighth Circuit. But officers who held him down and tasered him are immune from the excessive-force claim arising from his death.
- In a pair of decisions, the Ninth Circuit holds that two or three instances of corrections officers opening a prisoner's properly marked legal mail outside of the prisoner's presence is enough to raise a First Amendment claim, and, if the mail relates to a criminal matter, a Sixth Amendment claim.
- Did a Mexican national seeking refugee status in the U.S. successfully demonstrate past persecution based on his sexual orientation? Ninth Circuit (en banc): The horrific sexual abuse he suffered, combined with the Mexican authorities' inability or unwillingness to deal with the situation, certainly meets that standard.
- The Dodd-Frank Act protects whistleblowers from retaliation but defines "whistleblower" to mean people who give information to the SEC. Does it also protect a guy who was fired for giving information to his employer, rather than the SEC? Ninth Circuit: If the Supreme Court can call a health-care exchange established by the federal government "an exchange established by [a] State," see King v. Burwell, we can call this guy a whistleblower. Dissent: I disagree for reasons best illustrated by John Carpenter's The Thing (Universal Pictures 1982).
- Oklahoma prosecutor issues fake subpoenas, bogus arrest warrants in attempt to force three underage witnesses to testify against murder suspect—and does not inform their parents or get them counsel. (One, a 12 year old, testifies but later recants.) The suspect spends 16 years in prison, much of it on death row, before being freed. Oklahoma Supreme Court: No need to disbar the prosecutor. Tenth Circuit: But the suspect's suit over his alleged post-trial actions (which include efforts to ensure potentially exculpatory evidence remained concealed) can proceed. We don't have jurisdiction to reconsider the district court's denial of qualified immunity.
- Allegation: EPA agents lead armed raid of Casper, Wyo. laboratory based on false accusation from former employee, an 18 year old, that the lab falsified water-quality records. Five years later, case dismissed against former lab owners without charges. They sue the EPA. District court: It's too late to sue; the two-year statute of limitations started running when you lost the lab. Tenth Circuit: Actually, you couldn't have even sued then because sovereign immunity.
- In 1982, heirs of Coca-Cola magnate sell part of Georgia's largest barrier island (also owned in part by Carnegie family) to the National Park Service, retain right to use dock. Yikes! The dock will soon be inaccessible to most sea craft, owing to buildup of sedimentation. Must NPS allow the family to extend or move the dock? The Eleventh Circuit, in an Otis Redding-themed opinion, says no.
- Inmate spreads feces about his cell. While he is restrained and compliant, an officer allegedly punches him in the gut. The officer is fired. North Carolina court (over a dissent): Reinstate him.
- Police make to arrest motorist who did not break any traffic laws but has outstanding warrant. (Officers don't check to see what the warrant is for.) A pat down reveals a suspicious bulge in an intimate area, which leads to a strip search, which yields contraband, which leads to a search of the vehicle, which yields more contraband. Yikes! The warrant is for failure to pay a $6.50 traffic fine. New Jersey court: The strip search was unconstitutional. New trial to determine whether the motorist can still be imprisoned for the contraband in the car.
At a meeting in the White House last month, a sheriff from Kentucky told the President that critics of civil asset forfeiture simply "make up stories." This is a woefully inaccurate claim, write IJ Senior Legislative Counsel Lee McGrath and Communications Associate Nick Sibilla in The Wall Street Journal, citing, among others, the case of Russ Caswell, who almost lost his Massachusetts motel, which had been run by his family for more than 50 years, because of 15 "drug-related incidents" there from 1994-2008, a period through which he rented out nearly 200,000 rooms. Click here to read more (gated).