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.)
The Supreme Court will soon consider whether a Colorado law compelling a baker to bake a cake celebrating a same-sex marriage violates his First Amendment rights. IJ has filed an amicus brief, urging the court, no matter how it resolves the case, to explicitly reject the lower court's dangerous holding that compensated speech is entitled to less protection than uncompensated speech.
- Green Party/Libertarian Party: Our candidates were excluded from the 2012 presidential debates, which is a violation of antitrust law. D.C. Circuit: Novel, but this is not something antitrust is meant to address. Moreover, plaintiffs' First Amendment claim is completely devoid of merit.
- Man sets up fake email accounts, impersonates scholars whose views on the origin of the Dead Sea Scrolls are not consonant with his own. Second Circuit: "Confessing" to plagiarism (in emails to students, colleagues, and administrators) was intended to injure, so those convictions, for criminal impersonation and forgery, stand. But convictions reversed for other emails, which were more likely intended to embarrass than cause real harm.
- Nursing student is suspected of drug use, declines drug test. She's expelled. District court: Which deprived her of a property interest. Pay her $1 million. Third Circuit: Reversed. The private hospital running the program (in partnership with a public university) is not a state actor.
- Four off-duty Pittsburgh, Penn., police shoot at car that fled traffic stop and is weaving between inbound and outbound lanes of traffic along street crowded with pedestrians. They hit plaintiff (the driver's mother, a passenger in the vehicle) in the face and a pedestrian in the back. Third Circuit: Qualified immunity all around (except for one officer who perhaps fired after the vehicle had crashed).
- Fayette County, W.Va., officials ban drilling companies from injecting wastewater underground. Fourth Circuit: No can do. The feds and the state have complex permitting systems meant to ensure safe wastewater disposal, and plaintiff has permits.
- Allegation: State investigator intentionally falsified DNA analysis that put Lewisburg, Tenn., man behind bars for 11 years for rape he did not commit. Sixth Circuit: He can sue. Dissent: The analyst got it wrong, but there's no reason to think she did it on purpose. Case should be dismissed.
- Resident objects to exclusively Christian prayers led by Jackson County, Mich., commissioners before public meetings; commissioners criticize him; one calls him a "nitwit." Which was bad manners, says the Sixth Circuit (by a 9-6 vote), but a non-Christian could get elected and lead non-Christian prayers (or none at all). No need for us to "hover over each town hall meeting in the country like a helicopter parent," policing Establishment Clause violations.
- Sexagenarian's pants slip to mid-thigh, causing him to trip as Macomb County, Mich., jail officers escort him to medical evaluation. Officers say he intentionally pulled them to ground, drag him to cell. Though he's handcuffed, a 300-lb. officer kneels on him. He dies. Sixth Circuit: No qualified immunity.
- Convicted fraudster, who employed former strippers to help bilk nearly $100 million from southeast Michigan banks, does not report to prison, is apprehended after a manhunt, attempts to escape from jail. At hearing, he slams the prosecutor's head into a table repeatedly. Sixth Circuit: The table counts as a "dangerous weapon," so he gets a sentence enhancement.
- Allegation: IRS agents investigating tax evasion seize over $3 million from family's safe at their Delta, Ohio scrap-metal business, pocket nearly $2 million of it, and turn the rest over to the gov't for civil forfeiture. (No charges are ever filed against the family.) Sixth Circuit: The family missed the six-month deadline to file suit after the IRS rejected their administrative claims, and it doesn't matter if it was their lawyers' fault.
- Financial adviser is convicted of cheating clients, ordered to pay $290K restitution. Seventh Circuit: Affirmed. Judge Posner, dissenting: Comparing the defendant to Bernie Madoff, who defrauded his investors to the tune of $12 billion, was disreputable conduct by the DOJ. For that and other reasons, he should get a new trial.
- Allegation: Hackers steal man's credit card info from grocery store; he notices a fraudulent charge and gets the card replaced. Enough of an injury for him to sue the grocery store? Indeed, says the Eighth Circuit, though there is little to no risk the hackers will be able to open unauthorized new accounts in his name (as the stolen info did not include his SSN, birth date or other necessaries).
- Man avers that he is going to Costco to buy food, which DEA agents believe is code for illicit dealings. Ninth Circuit: No need to suppress the evidence from search of the man's truck. Judge Kozinski: "This is a green light for the police to search anyone's property based on what officers subjectively believe—or claim to believe—about someone's everyday conduct…. I dissent, and I'm off to Costco to buy some food."
- Third-party company uses "zombie" cookies (which continue collecting data even after being deleted) to track Verizon customers' web-browsing habits. Customers file a class action against the cookie company. Ninth Circuit: Which doesn't go to arbitration. Customers agreed to arbitrate disputes with Verizon, and the agreement does not extend to the cookie company.
- In July, the Supreme Court ruled that (for the time being) an executive order banning travelers from six Muslim countries cannot be enforced against people with a bona fide relationship to a person in the U.S. Ninth Circuit: Contrary to the Administration's position, grandparents, grandchildren, brothers- and sisters-in-law, aunts, uncles, nieces, nephews, and cousins are all bona fide. Moreover, an additional 24,000 people, refugees who have been vetted, may enter while the suit pends.
- Does qualified immunity protect a Nevada Highway Patrol major who ordered officers not to discuss a K9 unit that allegedly condoned unconstitutional searches? No, says the Ninth Circuit, the First Amendment clearly prohibits such a blanket ban on speech.
- Prosecutors: The gov't can forfeit $11.5K man paid to bail his wife out of jail because they would have spent the money on drugs if they hadn't used it on bail. Ninth Circuit: Even if that's what they intended, there's no evidence they acted on that intent; hundreds of years of common law says no punishing people solely for their thoughts. (In the Latin: Cogitationis poenam nemo patitur.)
- Mentally ill man declines to drop knife; San Jose, Calif. officer shoots him in the back, rendering him paraplegic. Neighbor (a former cop): The man wasn't threatening the officer. Jury: Excessive force. Ninth Circuit: No need to reconsider the jury's verdict; it's too late for the officer to appeal denial of qualified immunity.
- Seeking to stymie environmental activists, Wyoming officials enhance the penalties for those who trespass for the purpose of collecting data about things like soil and water quality. Tenth Circuit: The law targets the creation of speech. Punishing trespassers more merely because they're collecting data implicates the First Amendment.
- Military sergeant is suspected of violating a no-contact order by, among other things, posting online nude photos of his wife, who has accused him of sexual assault. He requests counsel, but questioning continues; he surrenders the password to his phone. Appeals Court for the Armed Forces (over a dissent): Suppress the evidence.
- And in en banc news, the Tenth Circuit will not reconsider its denial of qualified immunity to officers who allegedly lied about tea leaves testing positive for marijuana (which led to a SWAT raid on an innocent family). We did a podcast on the case.
Last month, a federal judge ruled that Indiana officials can no longer seize vehicles under the state's civil forfeiture laws, which lacked robust safeguards to prevent innocent people from losing their property. One reason such safeguards are necessary, the judge wrote, is that law enforcement gets to keep what they take. Indeed, in Indianapolis, police and prosecutors keep 100 percent of the proceeds from forfeiture, an arrangement that is the subject of a separate, ongoing IJ lawsuit because the Indiana Constitution requires all forfeiture proceeds to go to schools. To read more about the decision and IJ's suit, click here.