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.)
Recently, the U.S. Commission on Civil Rights unanimously condemned a new forfeiture policy by Attorney General Jeff Sessions. In USA Today, IJ Communications Associate Nick Sibilla and Colorado Rep. Leslie Herod, who authored a landmark forfeiture reform, describe how states like Colorado are fighting back against federal confiscations.
- Environmental groups challenge federal agency's approval of three new natural-gas pipelines. D.C. Circuit: While the agency assessed the project's environmental impact, as required by law, that review did not adequately consider the fact that the gas will be burned after reaching its destination and so will contribute to climate change.
- Police obtain warrant to search suspect's home for "all electronic devices." D.C. Circuit: The warrant was invalid, as police had no reason to think any particular device would be found or would yield useful evidence. Notwithstanding the ubiquity of cell phones in today's world, police cannot just assume that a suspect has a phone with incriminating data.
- First Circuit: "It takes a certain degree of effrontery for an accused person held in pretrial detention to continue to conduct his criminal enterprise over a prison telephone, knowing that prisoner calls are customarily recorded." You can probably figure out how this turns out.
- Citing safety concerns, Oyster Bay, N.Y., cracked down on day laborers and passed an ordinance prohibiting people from flagging down vehicles for the purpose of soliciting employment. But the ordinance exempts flagging down cabs, tow trucks, and other similar vehicles. Second Circuit: Which suggests that flagging down vehicles isn't really as dangerous as the town claims, so the ordinance violates the First Amendment.
- Eleven years after her husband's death from cancer, widow gives birth to twins conceived with husband's frozen sperm. Are the twins eligible for Social Security survivor benefits? Second Circuit: The twins would not have been eligible to inherit from the father under state law, so no. Concurrence: The Social Security Act was written 80 years ago; Congress might want to revisit this issue.
- Dissatisfied with his treatment by a Philadelphia TSA agent, traveler asks for a complaint form. TSA agent calls the police and alleges the traveler made a bomb threat; traveler arrested, later exonerated, sues TSA agent. Third Circuit: There is no First Amendment cause of action against TSA agents, so the traveler loses.
- We have harnessed the power of the atom, but we have not done a super-great job of adapting the tort system to the claims of people injured by exposure to radiation. So argues Judge McKee of the Third Circuit in concurrence.
- Would-be habeas petitioners who are past the usual statute of limitations have one year to file a new petition after the U.S. Supreme Court recognizes a new right that could affect their sentence. How specific does this recognition have to be? The Fourth Circuit says quite specific indeed, over a dissent arguing that recognition should cover anything the Supreme Court's reasoning would apply to.
- Religious evangelist wants to spark conversations in a public park by displaying riddles painted on a six-foot-by-four-foot sketch board—which, park officials say, is a structure that requires a permit. Unconstitutional? Probably not, rules the Fifth Circuit, in an opinion that upholds a denial of a preliminary injunction but, frustratingly, does not tell us what the riddles were.
- In spring of 2016, government officials executed three search warrants on man's home, business, and storage unit, all based on sealed probable-cause affidavits. Still unindicted over a year later, the appellant wants to have a look at those affidavits—and he may well have a right to, says the Fifth Circuit.
- Is a government official liable under the U.S. Constitution if, through his own negligence, he destroys private property without notice to the owner? No, says the Seventh Circuit, because "negligent bureaucratic errors do not violate the Due Process Clause." But fret not, property owner—you can still pursue state law remedies. (Pro tip: Make sure you meet state law deadlines.)
- After 23 years in prison, a man convicted of murder based on bite mark analysis is exonerated with DNA evidence. Upon release, he sues the lead detective and two dentists under Section 1983, claiming they fabricated their "expert" opinions. Over a dissent from Judge Sykes and three others, an en banc Seventh Circuit concludes it lacks jurisdiction to hear the interlocutory appeal of an order denying the defendants qualified immunity.
- This one from the Seventh Circuit speaks for itself: "In January 2013 an Australian teenager measured his Subway Footlong sandwich and discovered that it was only 11 inches long. He photographed the sandwich alongside a tape measure and posted the photo on his Facebook page. It went viral. Class-action litigation soon followed. … In their haste to file suit, however, the lawyers neglected to consider whether the claims had any merit. They did not."
- Woman rebuffs dude's advances, so he does the logical thing: He sets up social media accounts portraying her as a hooker and stripper, then sends letters to her employer and family claiming that sort of thing is her bag. When the dude is prosecuted for interstate stalking, he argues the logical thing: free speech. Eighth Circuit: Not a chance.
- Appellate nerd RED ALERT: Ninth Circuit grants mandamus against the judges of the District of Arizona, who brazenly went on shackling defendants as a matter of course, after a Ninth Circuit panel ruled their practice unconstitutional. Your honors, a stay of a mandate does not override the binding effect of a panel decision.
- The Ninth Circuit holds that a high school football coach acts as a public employee when he kneels and prays on the fifty-yard line immediately after games, and therefore he has no First Amendment right to exercise his religion in violation of school policy.
- Turns out you can't buy DVDs, copy the movies, filter out "objectionable" content, and then stream edited versions to your own paying customers. Well, you can, but a federal court can reasonably stop you, rules the Ninth Circuit.
- Tennessee Valley Authority workers lift submerged power line out of water just as fishing boat speeds past, killing one boater and injuring another. Eleventh Circuit: Building power lines is a governmental function, so sovereign immunity applies. Case dismissed.
- Just shy of his 18th birthday, juvenile launches spree of violent armed robberies. District judge sentences him to 57 years, saying, "you scare me." Eleventh Circuit: While actuarial tables suggest the juvenile will die before 57 years are out, the sentence is not an unconstitutional life sentence because he could get out early with good-time credit.
- Police seize cash from the mail, reasoning that it must be drug proceeds because (1) it's a large amount, (2) it's headed for California, and (3) a drug dog alerted. Indiana Court of Appeals: Drug dogs are notoriously unreliable, and not everyone who sends cash to California is a drug dealer. Return the money.
Jasna Bukvic-Bhayani wanted to open her school to train makeup artists. But in North Carolina, Jasna can only teach how to apply makeup if she transformed her school into a full-fledged esthetics school. That would force Jasna to spend thousands of dollars on unnecessary equipment. Even worse, Jasna would be forced to waste hundreds of hours teaching her students irrelevant subjects. But teaching is speech and is protected by the First Amendment. Last week, Jasna partnered with the Institute for Justice and sued North Carolina officials to vindicate her right to free speech. Read more about the case.