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.)
- For training purposes, military guards take video of the force feeding of a Guantanamo Bay detainee (who has since been released to Uruguay). Must the gov't release the video to the public? The D.C. Circuit says no.
- In 1960, Congress criminalized shipping certain "injurious" animals from Hawaii and other overseas jurisdictions to the continental United States. Recently, the Fish and Wildlife Service decided that shipments of such animals (including gigantic man-eating pythons and anacondas that can reproduce without fertilization) entirely within the continental U.S. are also banned. D.C. Circuit: That's not how that works.
- Trucking company buys bankrupt Mansfield, Mass., auto-parts supplier, rehires many of its drivers. NLRB: The company must bargain with the drivers' previous union. Company: But a majority of the drivers no longer want to be represented by the union. First Circuit: Bargain with the union.
- Two residents at St. Thomas, V.I., condo community obtain emotional support dogs—much to the chagrin of the neighbors, who blog about the violation of the association's no-dog rule. Third Circuit: The dog owners can sue the condo board and the bloggers for interfering with their Fair Housing Act rights.
- Company shuts down nearly 100-year-old aluminum smelter but continues operating four dams on a 45-mile stretch of North Carolina's Yadkin River, sells the electricity on wholesale market. State officials withdraw permission for the company to make use of the river. Fourth Circuit (over a dissent): The river was not commercially navigable in 1789, which would grant the state ownership by virtue of its sovereignty. Rather, the company owns the river by way of deed and adverse possession, so it doesn't need state officials' permission to use the river.
- The upper left corner of Mississippi's state flag contains the Confederate battle flag, which may be stigmatizing, says the Fifth Circuit, but plaintiff has not alleged any discriminatory treatment, so he doesn't have standing to press his equal protection claim.
- Motorist drives under speed limit in right lane of highway with hazards on, tells Grand Prairie, Tex., officer who stops him that he's looking for phone that he'd left on the roof of the car. The motorist complains but complies when he is ordered out of the car and told to put his hands on his head. But when he does not kneel with sufficient urgency, the officer hits him in the back of the neck. Qualified immunity? The Fifth Circuit, providing video (skip to 3:00), says no.
- Sixth Circuit: Miracle leaves diabetic man stunned.
- Allegation: Cleveland police officer pulls fleeing robber down from fence, frisks him. The robber breaks free, resumes flight. Without warning, the officer shoots him in the back, paralyzing him. Sixth Circuit: No qualified immunity.
- Man caught with stolen gun in Akron, Ohio, traffic stop cops a plea, avoids some state criminal charges. Yikes! The feds turn around and indict him for being a felon in possession. Double jeopardy? Sixth Circuit: Nope; also, you're subject to a stiffer sentence under the Armed Career Criminal Act.
- Woman with 1999 prostitution conviction leaves Wisconsin, fails to register with Minnesota authorities as a sex offender. Can the feds prosecute her in Wisconsin? Her crime occurred in Minnesota, says two-thirds of a Seventh Circuit panel, so no.
- Hotel employee, caught falling asleep on the job, is fired. He sues, claiming he was discriminated against because he's allergic to electromagnetic fields. Seventh Circuit: But he presented no evidence that this condition, if it even exists, falls within the scope of the Americans with Disabilities Act.
- Adjunct prof alleges South Bend, Ind., community college denied her promotions because she is a lesbian. Can she sue the school? The full Seventh Circuit says yes; discrimination on the basis of sexual orientation is prohibited by Title VII. Dissent: Congress plainly did not intend to prohibit such discrimination, and it's for Congress, not the courts, to revise the statute.
- Victim identifies her neighbor as perpetrator of 1995 sex assault. Weeks later, while he's in jail, a similar assault takes place blocks away, but the jury doesn't hear about it because the assailant is unknown; the neighbor is convicted of the first assault. Years later, DNA testing points to man (imprisoned for a 1998 sex assault) as the assailant in second 1995 assault. New trial for the neighbor? State: Not a chance. Wisconsin court: Do it.
- Company receives permit to operate limestone quarry. Nearby residents persuade town to ban company from putting trucks on the only road to the quarry. Company builds its own road on private property. Zoning board: So you're not complying with your permit, which stipulated you use the public road. Kentucky court: They can use the private road.
When Scott Fisher put a nine-foot inflatable Mario (of the classic Nintendo game) outside his video game store last summer, customers loved it and foot traffic increased substantially. But Orange Park, Fla., officials threatened $100/day fines because the city's sign code prohibits portable signs with a commercial message. An inflatable Santa Claus? Legal. Mario or Luigi? Strictly verboten. Last week, Scott sued the city, arguing the ban is an unconstitutional restriction on his free-speech rights. Click here to learn more.