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.)
Politically powerful car dealerships have given Tesla a rough run of late, winning battles in courthouses and state legislatures to prevent Tesla from selling its cars directly to the public. IJ Communications Associate Nick Sibilla has the story in the New York Times.
- Allegation: Five men are killed in Yemen by Hellfire missiles fired by an American drone; three of the men were the targets, two were collateral damage. Can the families of the latter obtain a ruling that the killings were unlawful? D.C. Circuit: This is a political question we cannot resolve. Concurrence: "Our democracy is broken."
- Homeland Security employee hands out security clearances, then transfers to Department of Defense. DHS finds some clearances were granted in error and tells DOD, which fires the employee. D.C. Circuit: No, DHS did not violate the employee's privacy rights. It would be strange if an employee could avoid the consequences of a mistake by hightailing it to another agency.
- Allegation: Passenger in stolen car makes a break for it on foot, is struck by a Bridgeport, Conn., police cruiser. He continues to flee but is Tased by three officers and winds up paralyzed. Second Circuit: No qualified immunity for two officers.
- Scott Township, Pa., ordinance requires all cemeteries to be open to the public during the day and authorizes officials to enter any property sans warrant to determine if it contains a cemetery. A property owner objects, says the ordinance authorizes unconstitutional searches and unconstitutionally takes property. Third Circuit: While we encourage the Township to give up its inspection provision, the property owner doesn't have standing to get a ruling on any of her claims.
- Public defender is fired after he tells judges, lawyers, and politicians he was demoted—reassigned from the trial team to the juvenile court unit—because he refused to railroad clients into plea agreements. Third Circuit: The lawyer's rumor-mongering impugned the integrity of the public defender's unit and threatened to undercut staff morale, so his firing did not violate the First Amendment.
- Bucks County, Pa., officials put database online identifying people detained or incarcerated in county jail as far back as 1938. Plaintiff: And my decades-old, expunged arrest record is publicly available (including on websites that post mugshots and charge a fee to take them down), bringing shame upon my family. Third Circuit: He may pursue a class action against county officials.
- Ours is a tolerant legal system, says the Third Circuit. But three Orthodox Jewish rabbis who planned to kidnap and torture a (fictitious) Orthodox husband until he granted a divorce to his wife (an undercover agent) cannot have their convictions overturned on religious-freedom grounds.
- A recent North Carolina law allows magistrates who oppose same-sex marriage to not perform them. If, as in one county, every magistrate recuses, the state pays to bring in a willing out-of-county magistrate. Plaintiffs: Which is an unconstitutional expenditure of public funds in aid of religion. Fourth Circuit: No one has been prevented from getting married. Plaintiffs don't have standing to sue.
- Hale County, Tex., jail officer sexually abuses detainee, resigns. Six months later, another officer rapes another detainee. Can she sue jail officials for failing to train and supervise their employees? Fifth Circuit: No. After the first rape, they put up a poster and told officers not to assault detainees, which was sufficient to get them qualified immunity.
- Ohio men convicted of unspeakably horrible crimes, sentenced to execution. Ohio's Execution Protocol calls for a three-drug cocktail with the infamous midazolam as the anesthetic. En banc Sixth Circuit (over a dissent): Which does not violate the Eighth Amendment's ban on cruel and unusual punishment.
- In Indiana, beer wholesalers can get a license to sell wine, and wine wholesalers can get a license to sell liquor, but nobody can get a license to sell both beer and liquor. The history is clear that this system was designed to promote political patronage. Unconstitutional? The history is irrelevant, says the Seventh Circuit, because it is imaginable that the system raises prices and therefore lowers consumption of alcohol.
- Allegation: Displeased with the way a septic tank installer installed a septic tank (at the installer's mother's property), Brown County, Ind., health officer revokes the installer's license—apparently for violations of the county's secret septic-tank ordinance. Seventh Circuit: Could be the installer's procedural due process rights were violated.
- Minneapolis landlords: Inspectors ordered us to fix up our properties, which we rent to low-income families. But the alleged code violations are trumped-up; the remediation orders are vague; and officials won't clarify them or let us appeal. Meanwhile, far worse violations persist in the city's public-housing units. Eighth Circuit: All of which does not amount to a violation of the Fair Housing Act.
- The NCAA bans anyone with a felony conviction from coaching at NCAA-certified youth athletic tournaments, a policy that disproportionately affects African Americans. Illegal racial discrimination under the Civil Rights Act? Ninth Circuit: Coach needed to show that an equally effective, less discriminatory alternative exists, which he failed to do.
- In which the Ninth Circuit provides a brief illustration of why, if you've successfully invoked your right to an attorney, you should really, really stop talking.
- Ninth Circuit: Though they appeal to public safety concerns, U.S. truckers who oppose Mexican truckers operating in the U.S. are in fact much more concerned about new competition. Separately, their suit against the feds over the issue can't go.
- In 1715, 11 Spanish galleons carrying a cargo of gold, silver, and precious jewels sank off the Florida coast in a hurricane. In 1979, a Florida company retrieved a cannon from the wreckage, kicking off litigation that continues to this day. The Eleventh Circuit has the latest installment.
- Sarasota, Fla., detective applies for state court permission to track cellphones. ACLU: We'd like to see those applications, which are public records under Florida law. Feds: Ah, but the detective is also a deputized U.S. marshal, and state law cannot compel a federal officer to produce anything. Magistrate judge: That's so, though he did sign one of the applications "Detective Smith, Sarasota PD." Eleventh Circuit: The ACLU is entitled to some jurisdictional discovery.
Food trucks in Louisville, Ky., are prohibited from operating within 150 feet of a restaurant that sells similar food without the restaurant owner's written permission, which is revocable at any time without notice. Unsurprisingly, large swaths of the city are no-go zones for food trucks, as getting permission from every brick-and-mortar food establishment is virtually impossible. Restaurants have even been known to add items to their menu specifically to force food trucks to move. Last month, a pair of food truck owners sued the city, arguing the 150-foot rule is an unconstitutional restriction on their right to earn an honest living. Read more here.