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 major win for the presumption of innocence, the U.S. Supreme Court recently ruled that a state "may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions." Over at Forbes.com, IJ Communications Associate Nick Sibilla explains why the High Court's decision in Nelson v. Colorado "may set an important precedent to rein in another abusive civil proceeding: civil forfeiture." Read the whole piece here. And click here to read IJ's amicus brief for the case.
- A Portland, Maine, cab driver sues, claiming that a cap on taxi permits at the local airport violates his constitutional rights. But he didn't testify that he would actually apply for a permit in the absence of a cap, which means his arguments that he has standing to sue don't fare well in the First Circuit.
- Defendant: My murder-for-hire conviction must be thrown out because the feds had their informant communicate with me via text message for the sole purpose of manufacturing an "interstate commerce" jurisdictional hook! Fourth Circuit: Or, just perhaps, they had him text you because we live in the present and everybody texts everybody all the time. Conviction affirmed.
- Is a lawsuit against a Kentucky county clerk who refused to issue marriage licenses to gay couples mooted by the fact that such licenses are now available statewide? Not when the plaintiffs are seeking damages, says the Sixth Circuit.
- Did a prison dentist show deliberate indifference to an inmate's suffering when—after a drill bit broke during a wisdom-tooth extraction—he left the broken bit and some non-dissolving gauze sewn up in the inmate's gum for two weeks? Seventh Circuit: Might could be.
- Wisconsin passes a statute authorizing cities to require police, fire, and emergency personnel to live within 15 miles of city limits. Three years later, Milwaukee imposes such a requirement and gives affected employees six months to comply. The employees say they have a vested right to keep on living where they want, but the Seventh Circuit tells them to start packing.
- Do a state fair's unwritten "rules" against impeding traffic and mounting signs on sticks violate the due-process rights of a would-be wielder of a sign on a stick? A majority of this Eighth Circuit panel says "no"; a concurrence says "probably" but that the plaintiff, who is free to ply his stick-and-sign combo nearby, is not suffering any irreparable harm and so is not entitled to injunctive relief in any event.
- When US Airways charges you $15 for a checked bag but then delivers the bag a day late, does the airline have to refund the money? Possibly, says the Ninth Circuit. The case should not have been dismissed because the airline's terms of service commit to deliver bags on arrival.
- Does a Hawaii law prohibiting firearm ownership by those convicted of domestic violence violate the Second Amendment? A per curiam Ninth Circuit panel says no, at least not when the plaintiff has not attempted to avail himself of state-law mechanisms for restoring his rights. Judge Kozinski, "ruminating" (which your editor suspects is like concurring, but more contemplative), calls on federal judges to start treating the Second Amendment as a real constitutional right.
- Deputy district attorney submits false, sworn statement with application for arrest warrant. Police execute warrant, conduct search incident to arrest, and find drugs. Prosecution ensues, and defendant spends six months in the clink before evidence is suppressed and case is dismissed. Does he have a claim for malicious prosecution? Tenth Circuit says nope.
- Police officer stops dude on a bike for riding against traffic and not using a headlight. Cyclist acts evasively and gives false identity, so officer orders him off the bike and threatens to Tase him if he doesn't comply. Cyclist refuses and reaches in pocket, so officer and partner force him to the ground. Once there, cyclist won't display his hands, so officer Tases him. Frisk turns up weapon, leading to felon-in-possession charge. Cyclist to Tenth Circuit: Officers' actions exceeded scope of the stop, amounted to arrest without probable cause. Tenth Circuit to cyclist: Police were right to take you down … and to Tase you, bro.
- Do indigent defendants in Colorado have (1) a constitutional right to be represented by private counsel who are willing to represent them for free; and simultaneously (2) a constitutional right to receive state funding for investigators and experts? Three judges of the Colorado Court of Appeals give three different answers.
- And in en banc news, an evenly divided Fifth Circuit will not reconsider a panel ruling holding that the EEOC could proceed with a Title VII lawsuit again Bass Pro Shops, asserting the violation of the rights of 50,000 job applicants; the Tenth Circuit will not reconsider a panel ruling holding that the SEC's administrative law judges are unconstitutional; and the D.C. Circuit will not reconsider the legality of the FCC's 2015 net neutrality rule.
Last week, Indiana became the 22nd state to let natural hair braiders work without a costly permission slip from the government. Even though natural hair braiding is, well, natural, the Hoosier State previously forced braiders to comply with the state's tangled mess of cosmetology licensing laws. In an editorial, the Wall Street Journal praised Indiana for eliminating "a major barrier to economic opportunity." Click here to read more about the braiding bill from IJ.