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 2011, New Jersey voters approved a constitutional amendment to legalize sports gambling, but today such wagers remain as illegal as ever thanks to a federal law that purports to take such decisions out of states' hands. Last week, the U.S. Supreme Court decided to take up the issue. We discussed the ruling below on the podcast.
- D.C. Circuit: No reasonable jurist could find that the habeas petition at issue was filed on time. Dissent: "As a jurist formerly known as reasonable, I disagree."
- There is no need to reconsider a three-and-a-half-year sentence meted out to a former CIA officer convicted of leaking classified information (on U.S. efforts to disrupt Iran's nuclear ambitions) to a New York Times reporter, says the Fourth Circuit.
- Fifth Circuit: A public university's proceedings against two students expelled for sexual misconduct did not lack for procedural fairness. Dissent: The majority implies that because the students are guilty, they got all the process they were due. Among other troubling issues, they had to play lawyer against a real lawyer, who also played the role of advocate for the victim, investigator, and witness, as well as adviser and trainer to the disciplinary panels.
- Man arrested for burglary, drunkenness allegedly altercates with Brownsville, Tex. corrections officer; he pleads guilty to assault on a public servant and heads to prison. Yikes! Several years later, video emerges that clears him. District court: Pay the man $2 million. Fifth Circuit: Ah, but he pled guilty, so he can't sue the gov't for withholding exculpatory evidence.
- Can a Mississippi man falsely convicted of raping and murdering a child sue the unscrupulous medical examiner whose testimony put him away and allowed the real killer (who was initially a suspect) to kill a second time? And can a (separate) man falsely convicted of the second murder based on the testimony of the very same medical examiner, as well as an unscrupulous bite-mark specialist, sue? Fifth Circuit: No.
- A recent Mississippi law bars state officials from penalizing citizens who act in accordance with their beliefs regarding gay marriage, sex outside of marriage, or whether gender is binary and immutable. District court: Which is probably unconstitutional. Fifth Circuit: In fact, plaintiffs, who oppose the law, have not shown they are sufficiently harmed by it to press their suit.
- San Antonio, Tex. elementary school principal pleads guilty to sexually abusing a student. Must the school district pay $4.5 million to student, as the district court ordered, even if no other school officials knew about the abuse? Fifth Circuit: No.
- During interrogation, low-IQ teenager confesses to taking part in Manitowoc County, Wisc. murder (that became the subject of a Netflix documentary series). Seventh Circuit (over a dissent): The confession was involuntary. The state shall set him free, retry him, or appeal within 90 days.
- Chicago crime boss, who did stints for skimming from Las Vegas casinos and attempting to bribe a U.S. senator, is more recently convicted of 1974 murder of witness, among other crimes. His lawyer miscalculates the deadline to appeal, misses it. Seventh Circuit (over a dissent): Too bad.
- New Albany, Ind. officials seize 11 cars from a resident's yard and driveway, call the operation a "cleanup." Seventh Circuit: Absent a warrant or some other basis in state law, that might violate the Fourth Amendment.
- Claim: Due to his offensive body odor, which religious and medical personnel have been unable to remedy, asylum seeker is presumed to be in league with demonic forces and is thus ostracized in Nigeria. Eighth Circuit: The BIA did not err in denying his asylum petition.
- Oregon state law requires law-enforcement officers who wish to access the state's database of prescribed prescription drugs to obtain a court order. DEA: We don't need a court order. Ninth Circuit: That's so.
- San Francisco passes an ordinance prohibiting what officials deem to be false or misleading advertising by "limited services pregnancy centers," clinics that provide free pregnancy-related services but that do not provide abortions or refer patients to other facilities for abortion. A First Amendment violation? Ninth Circuit (featuring a rare part concurrence, part dubitante): It is not.
- Allegation: Former employee logs into TV-news station's database, sends "taunting" anonymous emails to the station's online subscribers (20,000 of whom unsubscribe). Later, he creates login credentials for the back-end of the Los Angeles Times's website, which he shares in a chat room and urges chatters to "go fuck some shit up!" One does, changing a headline. (It's promptly fixed.) Ninth Circuit: The former employee's conviction and two-year sentence is affirmed.
- Colorado's marijuana businesses operate on an all-cash basis, which is risky business, because the feds won't let banks service the industry. And that's not going to change any time soon, says the Tenth Circuit in three different ways.
- Religious student group at public high school in Douglas County, Colo. plans trip abroad to spread the good word. To raise funds for the trip, parents at a nearby elementary school receive an email solicitation and students are sent home with a flyer. Non-Christian mom: My son felt coerced to donate/have me donate. Tenth Circuit: Could be an Establishment Clause violation.
- After a pair of burglaries, investigators get couple's permission to poke around their Lauderhill, Fla. home. But wait! It's a ruse! The burglar had already been caught; he'd tipped police off to illicit activity in the home, and rather than get a warrant, investigators pretended to be investigating the burglaries. Suppress the evidence? Two-thirds of an Eleventh Circuit panel says no.
- And in en banc news: Over a dissent, the Ninth Circuit will not reconsider its denial of qualified immunity to an officer who shot a mentally disturbed woman within seconds of ordering her to drop a knife. The D.C. Circuit, though it heard oral argument en banc, declined to revise an earlier ruling that the SEC's administrative law judges can be hired by the agency, rather than appointed by the President, without offending the Constitution.
Blaine Amendments, found in 37 state constitutions, are vestiges of 19th-century anti-Catholic bigotry, adopted to deny public funding to Catholic schools while subsidizing overtly religious, generically Protestant education in public schools. Today, Blaine Amendments are used to combat programs—like Douglas County, Colo.'s Choice Scholarship Program—that allow families to send their kids to private schools. Last week, the U.S. Supreme Court took two steps to rein in Blaines: first, holding that Missouri officials violated the U.S. Constitution when they relied on their state's Blaine Amendment to deny funding to a religious preschool to resurface its playground; and second, vacating a Colorado Supreme Court decision that relied on a Blaine Amendment to invalidate Douglas County's scholarship program. Read more here.