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.)
Friends, Texas is doubly blessed. Both the Texas Supreme Court and the Fifth Circuit take seriously the right to earn an honest living free from unreasonable government interference. So argues Arif Panju, managing director of IJ's Texas office, in the Texas Review of Law & Politics. Click here to read.
- In 2010 interview, law professor opines that Gitmo detainee is one of the "major conspirators in the 9/11 attacks." D.C. Circuit: The professor, now a military judge, should have recused himself from the detainee's case. (In June, the judge's panel reinstated two charges that a trial judge dismissed.)
- As a condition of guilty plea, prosecutors require defendant to waive right to obtain records about his case using the Freedom of Information Act. D.C. Circuit (over a dissent): Which is contrary to public policy and unenforceable. The gov't has no legitimate interest in denying prisoners access to potentially exculpatory information.
- In 2015, the EPA banned companies from using hydrofluorocarbons in their products (like aerosol sprays and commercial refrigerators), lest they contribute to climate change. D.C. Circuit (over a dissent): The Clean Air Act authorizes the EPA to regulate ozone-depleting products, not climate change-inducing ones, and hydrofluorocarbons do not deplete the ozone. So the ban is a no-go.
- Maine law prohibits noise loud enough to be heard inside a medical building that is intended to jeopardize the health of those within or interfere with the delivery of services inside the building. Abortion protestor: Police refuse to tell me what decibel level complies with the law; the law is unconstitutional. District court: Indeed, it likely cannot withstand strict scrutiny. First Circuit: The law is not content based, so it need only withstand intermediate scrutiny; and it does.
- Defendant writes letter to judge asking for new lawyer, admitting guilt. First Circuit: Which was a tactical mistake. Conviction and 15-year sentence affirmed.
- Religious employers with objections are (generally) exempt from the Affordable Care Act's contraceptive-coverage mandate. What about secular employers, like plaintiff, an anti-abortion group, whose objections are sincere but not religious? Thou shalt comply with the mandate, says the Third Circuit (over a dissent).
- Delaware officials demand company to submit to an audit-which can cost upwards of $1 million and last eight years-to see if the company's property can be seized through escheat. (Such seizures, whereby the state acquires title to abandoned property, are Delaware's third-largest source of revenue.) Company: This is super unconstitutional. Third Circuit: Federal courts can't hear most of the claims until the state actually forces the company to comply with the audit. But the company's claim about the propriety of a private firm conducting the audit can indeed be heard now.
- District court invokes qualified immunity to vacate jury's award of $2.3mil to man arrested and held in solitary for nearly 15 months for a crime he did not commit. Fourth Circuit: Baltimore police concealed material facts from both the judge who issued the arrest warrant (that the victim could not positively ID the man as her assailant) and prosecutors (that DNA excluded him as a suspect). He gets the $2.3mil.
- Allegation: Livingston Parish, La. officials and officers knew that man's (purported) anonymous online comments about parish officials, while unflattering, were protected speech. But they tracked him down anyway-and misled a judge in order to obtain an arrest warrant for criminal defamation. Fifth Circuit: Qualified immunity. He surrendered (and was not jailed) rather than be arrested, and it wasn't clearly established that surrendering counts as being seized under the Fourth Amendment. (It is now, though.)
- Allegation: Fort Worth, Tex. SWAT team raids home; officers wrestle man to ground, punch, kick, choke, and tase him. He has a heart attack and dies. District court: Video shows he was resisting. Fifth Circuit: The video is not so clear; a jury could find he presented no threat. No qualified immunity.
- Following conviction for triple murder, defendant is sentenced to death. Was the jury prejudiced by the fact that he was required to wear a stun belt during the sentencing phase? Seventh Circuit: Very possibly; reduce the sentence or resentence him without the stun belt.
- Striking worker shouts about fried chicken and watermelon to workers crossing Findley, Ohio picket line. He's fired. Eighth Circuit: Reinstate him with back pay. There is no indication the replacement workers heard his comments. Dissent: "No employer in America is or can be required to employ a racial bigot."
- Missouri law permits police to search commercial vehicles without probable cause. Eighth Circuit: Police need to inspect trucks for violations that might not be readily visible, so the law is not facially unconstitutional. But the law might be unconstitutional as applied to plaintiff, a dump-truck owner and think-tank director.
- Arizona law enforcement listens in on mother/daughter telephone conversations after deputy county attorney applies for and obtains a wiretap. The Ninth Circuit listens in on the mother's lawsuit against the county and holds that the wiretap application violated a federal law requiring that it come from a "principal prosecuting attorney." The mother's recovery? Zilch, because the deputy county attorney acted in good faith.
- Allegation: Bayard, N.M. officer who took control of scene right after man is shot to death is having an affair with the only witness, the man's wife. The wife had googled "how to cover up a suicde" and "how to clean up a crime sceen." The death is ruled a suicide. Tenth Circuit: The man's family's suit cannot proceed.
- Man denied a job at Waffle House in Ormond Beach, Fla. files a class action against the company. Yikes! Without informing his lawyers, he gets a job at Waffle House in Kansas City, Mo. and signs an arbitration agreement. Eleventh Circuit: The suit goes to arbitration.
- Miami Beach, Fla. officials crack down on greeters who stand outside stores, proffering handbills, free samples, and (as some allege) cat-calling and uninvited touching. Eleventh Circuit: But officials did not draw the law narrowly enough, so it likely violates the First Amendment.
Every year, thousands of Americans die because they cannot find a suitable bone-marrow donor. The shortage is the product of a federal ban on compensating bone-marrow donors. Representing sick patients and their families, IJ sued over the ban, and in 2012, the Ninth Circuit ruled that the ban did not apply to the most common form of marrow donation. (Unlike organs, bone marrow regenerates, and donating it is more akin to giving blood than extracting an organ.) That should have been a great triumph for patients, but soon after the ruling, federal health officials proposed reinstating the ban, and the proposed rule (while never enacted) put the brakes on a pilot program to offer modest compensation through a nonprofit organization (run by cancer survivors). This month, victory! The Department of Health and Human Services has withdrawn the proposed rule, and Americans are now free to create programs that are sure to save thousands of lives. Read more here.