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.)
- Did drug interdiction agents in Honduras open fire on traffickers who attacked them—or upon innocent villagers whose water taxi collided with the agents' disabled vessel? Second Circuit: The DEA must release video of the 2012 shooting to plaintiff, an investigative reporter.
- New York state senator is convicted of lying to FBI agents (investigating whether he secured a sinecure for his son) and is ordered to pay $50k fine. He passes away while his appeal is pending, so his conviction is vacated. Second Circuit: Return the $50k to his widow.
- Allegation: High school principal bullied student who no longer wanted to be on the varsity basketball team and banned her father from all school-related events (on and off campus) when he protested. Second Circuit: The father can sue the principal.
- Shortly before pleading guilty to crimes that will put him behind bars for decades, defendant learns that his (now-deceased) lawyer may have been sleeping with his mother. Second Circuit: Conviction affirmed, but further inquiry may be in order when/if he seeks post-conviction review.
- FBI agent investigating son of (now-former, now-incarcerated) U.S. Congressman for a variety of fraudulent dealings tips off the press to execution of sealed search warrant at son's home. Son: The leak cost me my job, which cost me the income necessary to hire my counsel of choice. Third Circuit: The agent did indeed behave wrongfully, but there's no constitutional violation. Conviction affirmed.
- Man shoots up York, Pa. nightclub; police confront him in the parking lot. Was he still menacing fleeing patrons or had he surrendered when police shot him to death? The officers' force was not excessive, says the Third Circuit.
- Allegation: Casino overpays patron $100 when he cashes out. He returns the following day, whereupon casino staff demand return of the money. When he demurs, the casino summons Pennsylvania state police, who give him ten seconds to pay up or be arrested. He pays up. Third Circuit: Can't sue the police over that.
- Retailer reports couple to Arlington, Va. police for fraud, calls back the next day: It was a mistake—no fraud. But wait! The officer does not withdraw their arrest warrants. Eight months later, the husband is arrested after being pulled over for speeding. Fraud charges are dropped, but neither the officer nor the prosecutor withdraw the warrant against his wife, who is arrested several months later. She's strip searched and spends three days in jail (during which time she is unable to use a breast pump) before fraud charges are dropped. Fourth Circuit: Maybe the couple have a remedy … in state court.
- The feds authorize two Mexican long-haul trucking companies with Mexico-licensed drivers to operate in the U.S. Domestic truckers' association: The feds don't have the authority to do that. Fifth Circuit: The 60-day deadline to sue started running when the feds rejected the U.S. truckers' protest, not months later when they rejected a subsequent petition for reconsideration. Case dismissed.
- The First Amendment may permit Tippecanoe County, Ind. officials to allow for an art fair outside the courthouse while preventing a pro-marijuana legalization group from holding an event there, but, says the Seventh Circuit, the county's current policy doesn't pass muster.
- When the first section heading of an opinion is "Design Basics and the Art of the Intellectual Property Shakedown," you can probably guess how things are going to turn out for Plaintiff Design Basics, LLC. Via the Seventh Circuit.
- Allegation: Off-duty McCrory, Ark. officer espies man behaving suspiciously at a carwash, calls police to respond. The man peaceably obliges police requests for ID and two pat-downs, but is violently taken to ground and handcuffed with help from the off-duty officer. He suffers debilitating injuries. Eighth Circuit: He can sue the off-duty officer.
- After evening of carousing, woman returns to her office to sleep it off, unwittingly triggering an alarm. San Diego police set loose a canine, which bites her. An officer (allegedly) exclaims she's lucky not to have had her face ripped off. Ninth Circuit: She gets a trial over the police department's "bite-and-hold" policy. En banc Court: She does not.
- Is a 17-year-old conviction for fleeing from the police a crime of moral turpitude, rendering an illegal alien ineligible for a cancellation of removal from the U.S. (where he has a U.S. citizen wife and four U.S. citizen kids)? Ninth Circuit: It is not invariably turpitudinous, so he can apply for cancellation of removal.
- Defendant rejects his appointed counsel, who was once married to the prosecutor, and defends himself at trial. He's convicted and faces life imprisonment. New trial? The Tenth Circuit says no.
- Allegation: A Pueblo County, Colo. marijuana growing operation emits strong odors and hurts the value of a neighboring property. Tenth Circuit: The neighbors can press their civil RICO claims against the growers.
In 2015, Montana legislators did a marvelous thing: They enacted a tax-credit scholarship program to enable low-income families to send their kids to private schools. But the agency implementing the law decided—in clear conflict with the text and purpose of the law—that the scholarships could not be used at religious schools, which make up the majority of Montana's private schools. Last month, a state court ruled the agency made a "mistake of law," clearing the way for the program to function as intended. Read more here.