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.)
One difficulty with litigating civil forfeiture is that the government can return seized property and render cases moot before courts render a definitive judgment. So, argues IJ Attorney Anya Bidwell in the Texas Tribune, reform should involve state and federal legislators.
- Time flies like an arrow, fruit flies like a banana, and the plaintiff's reading of the statutory text does not fly with this D.C. Circuit panel.
- Man sends emails written by his boss at the request of his boss to client. Yikes! They contain false information, defraud the client. Securities and Exchange Commission: The man gets a lifetime ban from the securities industry. (The boss, who opted not to go to trial, is not banned.) D.C. Circuit: The ban is vacated, but (over a dissent) the man willfully deceived the client, so the SEC may impose a lesser penalty.
- Woman accuses FBI-agent husband of spying on her using FBI surveillance equipment, and all she gets from 1st Circuit is this vocab quiz: fulcrum, averments, cavil, gallimaufry and hierarchs.
- Blind and deaf movie patron asks cinema to provide him with a tactile interpreter so he can experience "Gone Girl" in the theater. The cinema declines. An Americans With Disabilities Act violation? The suit should not have been dismissed, says the 3rd Circuit.
- Man accuses manufacturer of selling unsafe roadside guardrails, defrauding the feds (who reimburse states for installing them). Fifth Circuit: The $663 million judgment against the manufacturer is reversed. The feds were aware of the purported defects; it's not for a jury to second-guess the feds' safety judgments.
- Does Texas's delegation of its eminent domain power to private pipeline companies violate the due process clause? Probably not, according to this 5th Circuit panel.
- Hamilton County, Tenn., officer pulls over (intoxicated?) motorist, learns she has an outstanding warrant, sexually assaults her and lets her drive away. He pleads guilty to lying to investigators. 6th Circuit: His 60-month sentence for lying was reasonable.
- Man who paid $200,000 to get out of jail prior to his trial (over punch that killed a Palatine, Ill., bar patron) is acquitted, gets $180,000 back. Man: The 10 percent bail bond fee is unconstitutional. 7th Circuit: It's not.
- Ninth Circuit (2014): Gentleman threatened with criminal liability has standing to sue, even though he ceased the offending conduct before the full force and majesty of the state befell him. Nonetheless, the use of hovercrafts in national parks is still forbidden. Ninth Circuit (2017): On remand from the Supremes, we still say the feds' ban on hovercrafts (as opposed to Alaska's tolerance of them) controls.
- When 14-year-old murder suspect with an IQ of 77 asks to speak with a lawyer, Los Angeles police respond "that's fine bro" but then go right on asking questions. Ninth Circuit: When a suspect asks for a lawyer, you have to get him a lawyer.
- Mentally ill relative refuses to move out of family's home. Sacramento County, Calif., police arrive on the scene, then tase and shoot the recalcitrant houseguest to death. Ninth Circuit: Officer gets qualified immunity for federal claim. Confronted with a 250-pound man with mental-health issues, the "much smaller" officers reasonably feared for their safety when he physically resisted their efforts to get him to leave.
- Immigration authorities allow noncitizens to go free, pending removal proceedings, so long as they post a bond. But many immigrants who aren't a flight risk don't have money for a bond. Ninth Circuit: The government cannot keep people in jail just because they are poor. Due process requires immigration authorities to hold new bond hearings that consider whether detainees are too poor to pay a bond and entertain alternative ways to ensure that detainees show up for their day in court.
- Did a 13-year-old willfully interfere with the education of his peers by skipping class? Indeed not, says the 10th Circuit, but the Albuquerque, N.M., officer who handcuffed and arrested him on those grounds, leaving him "in so much pain that he could not lift his arms to wipe away his tears," gets qualified immunity.
- Walker County, Ga., school board allows public comment at meetings, but only if an individual first meets with the superintendent, who, by delaying that meeting, can prevent them from speaking before the school board—a policy that allegedly chills speech critical of the board. Eleventh Circuit: The board can allow or disallow public comment at meetings but can't disallow only the speech it finds inconvenient.
- Taking away a driver's license for nonpayment of fines and fees without holding an indigent hearing is—says a federal district court in Tennessee—like "using a shotgun to treat a broken arm. There is no rational basis for that."
Heather Kokesch Del Castillo is a privately certified health coach who ran a successful business, creating individualized diet and exercise plans for her clients, until last May. But Florida regulators (tipped off by a local dietician) threatened her with a year in jail—per customer—unless she gets a license. Licensing is especially burdensome for military spouses such as Heather; there's no guarantee she'd even still be in Florida by the time she finished the schooling necessary to get the license. Last week, she filed a First Amendment challenge, arguing that Florida officials have no business forbidding her from speaking to paying customers. Read more about the case here.