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.)
- You can't carry a handgun in D.C. unless the police chief thinks you have a good reason, which is effectively a ban for the average citizen, says the D.C. Circuit. The law invades the core of the Second Amendment and is therefore struck down categorically. Dissent: No, no, the Supreme Court says the Second Amendment's core is just inside the home, so restrictions on gun-toting in the streets pass muster.
- In which the D.C. Circuit takes on the "Case of the Incredible Shrinking Airline Seat" and finds the FAA was too cavalier about dismissing a petition to mandate minimum seat sizes.
- Clothing retailer lists a purchase price on its merchandise paired with a much higher comparison price, so as to suggest a customer would have to pay more if buying elsewhere. Allegation: There is no elsewhere; the comparison price is made up. First Circuit: That would be very deceptive indeed, but plaintiff, who spent $50 on a sweater (comparison price: $218), hasn't been sufficiently injured to pursue suit.
- NBC: Company's rifle targets, which reward good marksmanship by exploding, are pretty much bombs and should be regulated more stringently. Company: "Only girly-men want" that. Also, NBC's report was defamatory. Second Circuit: It was not.
- Septuagenarian lawyer chats up Occupy Wall Street protestors during rush hour, is handcuffed and hauled away by NYPD. Can he sue? The police get qualified immunity, says the Second Circuit; video shows the cops were doing their jobs and the lawyer got belligerent.
- Man spends 20 years in custody for crime actually committed by serial rapist. Can he sue the New Orleans officers who, he alleges, deliberately suppressed exculpatory evidence? Fifth Circuit (2016): Definitely the officer who led the investigation. Fifth Circuit (2017): As well as two other officers who participated. But a criminalist who falsely testified no semen was on the victim's underwear is entitled to qualified immunity.
- After helping motorist push vehicle to gas station, Lubbock, Tex. officer learns the vehicle is stolen. The motorist takes off in the officer's vehicle, pulls along the officer. They crash. Video shows the two side by side in the street as a second officer arrives, kicks the motorist in the face, punches him, and hits him with a baton, breaking his ribs. Excessive force? Fifth Circuit: Qualified immunity.
- NLRB: Company policy forbidding employees from "arguing or fighting" and "failing to treat others with respect" is an illegal restriction on union activity. Fifth Circuit: Yeah no. But the company may not bar employees from covertly recording audio or video in the workplace.
- Faced with a budget crunch, officials temporarily replace retired Lincoln Park, Mich. public employees' health benefits with a monthly stipend to be used to purchase private health insurance. A violation of the Contracts Clause? Sixth Circuit (over a dissent): Section 1983 (a descendant of the 1871 Civil Rights Act) does not give rise to Contracts Clause claims.
- Debt collector files suit against debtor in district (Chicago) where the debt was incurred, as is proper. While the suit pends, the Seventh Circuit decides that such suits must instead be filed where the debtor lives (the suburbs) and that the new rule is retroactive. The debt collector thus dismisses its suit. But wait! The debtor then sues the debt collector for having filed in the wrong venue. Seventh Circuit, en banc (over a Kafka-invoking dissent): We meant it about the retroactivity. The debt collector is liable.
- Ferguson, Mo. officer shoots, kills suspect, sparking protests. Can the suspect's friend, who was present at the shooting, sue the officer and the police chief? No qualified immunity for either cop, says the Eighth Circuit (over a dissent). Could be that the officer unconstitutionally seized plaintiff and that the chief of police routinely turned a blind eye to such violations.
- Allegation: Kansas City, Mo. police order men out of vacant house; one emerges holding a metal pipe but obeys command to raise his hands. An officer holsters his weapon and punches the man in the face—to little apparent effect. Another officer then shoots the man, who still has the pipe and his hands raised, dead. Eighth Circuit: No qualified immunity for either officer.
- Wildlife organization sues the feds over buffalo-herding tactics. Shortly thereafter, in Yellowstone National Park, an officer cites one of the organization's volunteers when he does not immediately follow order to move to location where he cannot observe the herding. Meanwhile, other members of the public are allowed to watch the herding up close. Ninth Circuit: The activist's suit should not have been dismissed. On remand, this goes to a different judge.
- "Law-abiding tea drinkers and gardeners beware: One visit to a garden store and some loose tea leaves in your trash may subject you to an early-morning, SWAT-style raid, complete with battering ram, bulletproof vests, and assault rifles. Perhaps the officers will intentionally conduct the terrifying raid while your children are home, and keep the entire family under armed guard for two and a half hours while concerned residents of your quiet, family-oriented neighborhood wonder what nefarious crime you have committed. This is neither hyperbole nor metaphor—it is precisely what happened to the Harte family in the case before us on appeal." So begins the first of three opinions issued by a Tenth Circuit panel, which ultimately grants qualified immunity to officers and officials on all but one federal claim.
- Oklahoma City police shine spotlight on vehicle in billiard hall parking lot, approach the vehicle on foot such that the driver would have had to hit them if he tried to leave. Would a reasonable person feel free to leave? The Supreme Court has said as much, says Judge Hartz of the Tenth Circuit (in another three-opinion decision).
- Colorado corrections officials allegedly bar inmate from outdoor exercise for two years. An Eighth Amendment violation? It's an open question that shall remain open, says the Tenth Circuit. The officials are entitled to qualified immunity.
- Man is convicted of pushing his second wife off a 100-foot cliff. Should the jury have been permitted to hear about the death of his first wife, who was crushed by a car while the two were changing a flat tire? Tenth Circuit: Conviction affirmed.
- Come for the Game of Thrones reference in this Eleventh Circuit majority opinion, stay for the subtle shade thrown at pop culture by the last line of the concurrence.
This month, the Minnesota Supreme Court ruled that city officials need not show individualized suspicion of a housing code violation before obtaining a warrant to enter renters' homes against their wishes. Says the dissent: "It is difficult to conceive of a more invasive search, and it is a search authorized without the traditional protections afforded by the requirement of probable cause." The majority did rule, however, that henceforth city officials must first give notice before trying to get a warrant, something plaintiffs did not get (at first) in this case. Read more here.