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, if you've been hankering for a primer on the Arizona Constitution's protections for the right to earn an honest living, which have waxed, waned, and (we hope) may soon wax again, you are in luck. IJ-Arizona attorneys Paul Avelar and Keith Diggs recently published just such a primer in the Arizona State Law Journal. Click here to read it.
- Magazine publishes, retracts fabricated account of gang rape at fraternity party. Can three frat brothers who were not identified by name but allege they were readily identified (by friends, family, acquaintances) sue the magazine and the writer? Two can, says the Second Circuit. And (over a dissent) all three can pursue a separate defamation claim concerning whether the article implied that pledges had to participate in (or at least turn a blind eye to) gang rape to join the fraternity.
- Palmerton, Penn., high school football player exhibits clear signs of concussion; coach puts him back in. He takes another big hit, sustains brain injury. Third Circuit: The coach could have foreseen that and was deliberately indifferent. But there was no case law at the time alerting him he could be liable, so the student can't sue.
- Allegation: Substitute custodian reluctantly acquiesces to sexual advances of head custodian at Atlantic City, N.J. school, is assigned fewer hours when she ceases to acquiesce. Third Circuit (over a dissent): Though he was only one of the many head custodians at different district schools who could assign her work, he was her supervisor. She can sue the school board.
- DEA agents relieve two travelers of $41K at Cleveland airport. (No charges filed.) The travelers file paperwork contesting forfeiture. Prosecutors: In which they failed to detail how they came by the cash, which unfairly burdens our efforts to confirm or disprove their story. The court can't consider their claims. Sixth Circuit: That is not the rule. The gov't bears the burden of proof and can't force property owners to do its work for it.
- Milwaukee jail officer tells detainee suspected of faking medical distress that he's to be treated like an animal. Officers don't render aid when he writhes on the floor, moans, drools, spits, soils himself, bleeds, says he can't breathe. He dies. District court: Qualified immunity and pay $300K sanctions and attorneys' fees for (among other things) bringing baseless claims against parties who were only in contact briefly (if at all) with the deceased. Seventh Circuit: No qualified immunity and reconsider whether sanctions are appropriate.
- Chicago law bans pet shops from obtaining animals from private breeders; pups must come from city shelters or nonprofits. Seventh Circuit (over a dissent): No need to let plaintiffs present evidence that the ban actually harms animals while disproportionately burdening out-of-state breeders (thus violating the Commerce Clause); dismissed on the pleadings.
- Dog runs on highway near St. Joseph, Mo.; vehicles swerve at high speed to avoid it. An officer stops traffic, attempts to chase the dog off the highway. No luck. He shoots, wounds it, and administers coup de grâce after it drags itself onto median. Eighth Circuit: Qualified immunity. "A dog owner's protected property interest wanes if her pet escapes."
- A San Francisco law requiring warning labels on soda and other sugary drinks is deceptive and likely violates the First Amendment, says the Ninth Circuit (with pictures). However, if officials tweak the language a little bit so as to say overconsumption of sugar may contribute to ill health…
- To resolve lawsuit filed by the DOJ, Seattle police department adopts policy requiring officers to attempt de-escalation (when possible) and use reasonable force to resolve tense situations. (A federal compliance monitor reports that officers' use of force has since declined significantly without increased crime or injuries to officers.) Police officers: The policy violates our Second Amendment right to self-defense. Ninth Circuit: Novel but no.
- Man purchases "Cobra Sexual Energy" dietary supplement, finds it does not enhance his sexual performance or imbue him with "animal magnetism." May his class action proceed even though the deadline to appeal may have passed? Ninth Circuit: There's a circuit split on the issue, but we say yes.
- Orange County, Calif., officers looking for son arrest father, a septuagenarian, tearing his rotator cuff. Realizing their mistake, they search the father's home, going through drawers and cabinets where the son obviously won't be found. Ninth Circuit: No qualified immunity for allegedly keeping the father handcuffed in patrol car in retaliation for his argumentativeness. But (over a dissent) he can't press his excessive force claim. (Perhaps the father was feeling argumentative because of a previous warrantless raid.)
- A California ban on force-feeding ducks and geese is not preempted by federal law, says the Ninth Circuit. Californians may still obtain foie gras, however, so long as it's from non-force-fed fowl.
- Reasoning that coal mining at two sites on Wyoming's Powder River Basin (which produce 20 percent of the nation's annual coal supply) will not impact climate change, the feds permit mining to continue. Tenth Circuit: No need to vacate the permits just now, but that does not make sense. Concurrence: We should have reached this result without commenting on the merits of climate science, which is not so settled as the majority suggests.
- To get the premium features cable TV provider provides, one must rent a set-top box from the provider—and not from competitors (who do not currently exist but might emerge). Antitrust violation? Jury: Yup. Pay $6.31 mil damages. Tenth Circuit (over a dissent): Actually, no.
- Company builds wind farm on private land in Osage County, Okla., digs up rocks, crushes them and pours them into the (10-foot-deep, 60-foot-wide) foundations for the turbines. Tenth Circuit: Which is mining. The company needed a federal mining permit.
- District court: Fracking regulations promulgated by the Obama administration are invalid; the Bureau of Land Management needed the OK from Congress before creating them. Tenth Circuit: The case is prudentially unripe, as the current administration is in the process of withdrawing the rules.
- Woman suing employer for discrimination fails to disclose the lawsuit as an asset in bankruptcy filings. Must the suit be dismissed? Overturning circuit precedent, the en banc Eleventh Circuit says no, not necessarily. If the trial judge thinks the plaintiff made an honest mistake, the case can proceed.
- Police find man suspected of sexual assault, armed robbery with the complainants' property. He's convicted. D.C. Court of Appeals (over a dissent): Reversed. Police needed a warrant to locate him with a stingray device, which tricks cellphones into revealing their location.
Last week, Illinois Gov. Bruce Rauner signed a civil forfeiture reform bill into law, making Illinois the 25th state to strengthen protections for property owners. The law eliminates the state's "cost bond" requirement (which forced property owners to put down a bond—the greater of $100 or 10 percent of their property's value) to challenge a forfeiture, shifts the burden of proof from property owners to the state, and institutes new auditing and reporting requirements. Click here for more.