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.)
Third time's a charm? Federal legislation introduced last week would substantially reform civil forfeiture, says IJ Communications Associate Nick Sibilla. The bill, among other things, would abolish the incentive to police for profit and restore the principle that property owners are "innocent until proven guilty." Click here for more.
- The outcome of this First Circuit case, that a Portland, Me. dairy company must pay its delivery drivers overtime, turns on the absence of a serial comma.
- Houston lawyer promises to bribe top men in D.C., make his clients' criminal charges disappear. Instead, he pockets the bribe money, and his clients get long prison sentences. Prosecutors: Which is obstruction of justice. Fifth Circuit: Conviction affirmed, and the gov't can forfeit his house.
- Sherman, Tex. police suspect (correctly) that suspect has contraband in her mouth, attempt to pry her jaw open. She struggles; they drag her from patrol car, which takes over a minute because her seatbelt is fastened, during which time the baggie lodges in her throat, asphyxiating her. Fifth Circuit: Qualified immunity.
- Houston police officer: Suspect screamed at, advanced towards me menacingly with a hand behind his back. Suspect's neighbor: He was calm, had his hands in plain view, and the officer shot him dead. Fifth Circuit: No qualified immunity.
- Chicago man gets 20 years on two gun charges; on retrial, he's acquitted of one of the charges, but he still gets 20 years. Seventh Circuit: Sentence affirmed. Dissent: He'll have aged out of violent crime long before he's released; long sentences do not deter such criminals.
- Seventh Circuit: No need to resentence murder convict who will be eligible for parole when he reaches 70. Dissent: He has effectively received a life sentence, as the life expectancy for inmates like him is between 50 and 58. And life sentences for juvenile offenders are unconstitutional.
- Canadian police stop American tourist with 20-year-old sex-offense convictions, discover two suggestive images on laptop, alert U.S. authorities. A federal agent applies for warrant to search the man's Burien, Wash. home, neglects to mention that Canadian police determined the images were not pornographic and dropped the charge against him. The search of the home yields child porn. Ninth Circuit (over a dissent): Suppress the evidence.
- Allegation: Supervisors and coworkers at Savannah, Ga. hospital mistreated, harassed plaintiff (a security guard) because she is a lesbian. Eleventh Circuit (over a dissent): Title VII's protections against sexual harassment in the workplace do not extend to harassment for sexual orientation.
- Alabama death-row inmate suffers from dementia, no longer remembers murder he committed in 1985. Alabama court: He can relate details from the procedural history of his case, so he remains competent. Eleventh Circuit (over a reluctant dissent): He's incompetent. The state cannot execute him.
- Delta, United, American, and other airlines collect Mexican tourism tax from Mexican nationals and others who are exempt from the tax, keep the proceeds. Eleventh Circuit: Troubling, but it's not a RICO case.
- Unable to pay $160 to secure his immediate release, misdemeanor arrestee spends six nights in Calhoun, Ga. jail. Does the city's bail policy unconstitutionally discriminate against the indigent? Eleventh Circuit: Before we get there, the district court's preliminary injunction, ordering the city to stop enforcing the policy for the time being, lacks sufficient guidance as to what officials must do to comply with the order.
- California police seize cash, vehicles purportedly connected to illicit dealings, file paperwork to forfeit the assets. But wait! State law requires prosecutors to do the filing (and take a 10 percent cut of the proceeds). Can the property owners get their stuff back? A California appeals court says yes.
- Father expects to collect insurance proceeds after drunk son takes vehicle without permission, totals it; police tell insurance company not to disburse any funds, as they'll be pursuing forfeiture. But they don't tell the father, who misses 60-day window to challenge. Trial court: A deadline is a deadline. Minnesota appeals court: Insurance proceeds are not forfeitable.
- In his personal vehicle, off-duty Harris County, Tex. cop pulls up alongside motorist who purportedly cut him off, shoots her in the head with his personal gun. He gets 20 years. Can the motorist, who survived, sue the county (and its psychologist) for hiring, continuing to employ him and for failing to revoke its authorization of his use of the gun despite: his (disclosed) chemical imbalance; his dismissal from a law enforcement academy for aggressive behavior, lying; and his involvement in previous road-rage incidents? Texas appeals court: Maybe. Dissent: No.
- And in en banc news, the Eleventh Circuit will revisit precedent that holds there is no fundamental right to buy, sell, or use sex toys. (We talked about the original panel decision on the podcast.) The Eleventh Circuit will not, however, reconsider its grant of qualified immunity to an officer who shot to death the neighbor (who answered his door with a gun in hand) of a suspect. Neither will the Fifth Circuit reconsider whether a nonprofit ordered to not publish 3D gun-printing instructions online is entitled to a preliminary injunction, thus permitting what the dissent characterizes as "the most egregious deprivation of First Amendment rights possible." (We discussed the case on the podcast.) Nor will the Ninth Circuit reconsider a decision holding that President Trump's first, now-withdrawn, immigration executive order was likely unconstitutional, despite, according to the dissent, the decision's errors, which so "confound Supreme Court and Ninth Circuit precedent that neither we nor district courts will know what law to apply in the future."
Pottstown, Penn. officials are given to entering rental properties and inspecting them for housing code violations—without probable cause that something is wrong inside and without the consent of tenants or landlords. Which is a problem for Dottie and Omar Rivera, who do not want officials poking through their perfectly well-maintained home, which they rent. It's also a problem under the Pennsylvania Constitution, which provides even stronger protections against suspicionless searches and seizures than the federal Fourth Amendment. So, last week Dottie, Omar, and their landlord joined forces with IJ to challenge Pottstown's rental-inspection ordinance. Read about the case here.