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.)
- District court: We can't reach the merits of two Philadelphia cops' claims against the city because their lawyer failed to comply with a rudimentary procedural rule. Case dismissed. Third Circuit: Affirmed. Though plaintiffs may still have some recourse … through their lawyer's malpractice insurer.
- Does a court lack jurisdiction under the Labor Management Relations Act when an employee files a lawsuit a few days before a contractually mandated arbitrator issues a final decision? Yes, says the Fifth Circuit (over a dissent), in an unpublished opinion that is also about football.
- Septuagenarian chronic opioid addict sentenced to 18 months in prison based on government's unsupported pseudoscientific claim that it takes 18 months for the brain of an addict to "reset." Sixth Circuit: That was both procedurally and substantively unreasonable.
- Retailer pays its employees on commission; if that amounts to less than the minimum wage, employees get an advance, which is then deducted from future paychecks, to bump them up to $7.25/hr. A violation of the Fair Labor Standards Act? Ordinarily not, says the Sixth Circuit, but here plaintiffs allege employees were encouraged to work off the clock to avoid the deductions, so the suit should not have been dismissed.
- In 2014, the Supreme Court ruled that non-union home health assistants in Illinois could not be forced to pay fees to a union. On remand, plaintiffs sought to certify a class of all non-union assistants—as many as 80,000 who perhaps turned over a total of $32 million. Seventh Circuit: No can do. Among other things, there's no way to know how many proposed class members didn't mind paying the fees. (But plaintiffs still get money damages, an injunction against forced dues).
- Plaintiff: Red Hots, the cinnamon candy, are packaged deceptively; the boxes contain too much air and not enough candy. Eighth Circuit: Which should be sorted out in state court.
- The Second Amendment does not protect a right to sell guns, says the Ninth Circuit, sitting en banc, so Alameda County, Calif., zoning restrictions that allegedly amount to a ban on new gun stores are constitutional.
- A California law requiring an Ohio company, which helps homeowners pay less interest on their home loans, to incorporate in California as a condition of doing business in the state falls afoul of the Dormant Commerce Clause, says the Ninth Circuit. A separate requirement forcing the company to disclose in its solicitations that its services are not authorized by lenders does not offend the First Amendment, however.
- Ninth Circuit: We reinstate this death row inmate's habeas petition because his claims were not really waived. Dissent: I disagree, but none of this matters because California doesn't execute anybody anyway. This is either a "cruel and expensive hoax" or "a Gilbert and Sullivan operetta," or, possibly, both.
- Allegation: Police corner motorist who fled traffic stop, asked police to kill him. After they shoot him with Taser, bean bags, he turns his back on the officers and begins to raise his empty hands; a Pinal County, Ariz., officer, who says he did not hear multiple reports that the motorist was unarmed, shoots him in the back, killing him. Ninth Circuit: No qualified immunity; this case needs to go to trial.
- Colorado Springs, Colo., SWAT ignite bomb in the home of Army vet suffering from PTSD who allegedly threatened to kill neighbors (firing a shot into the ground during the altercation). The blast breaks his leg, sends shrapnel into his flesh. Tenth Circuit: He can sue officers in their official, but not individual, capacities and press his claim the city failed to train them properly.
- Bucks County, Penn., police chief's daughter, one Ms. Knott, is jailed for her role in beating in Philadelphia. Unrelated woman creates social media account with username "Knotty is a Tramp" and posts comments like "I'm an entitled princess who can beat up gay people if I want to." Allegation: Bucks County officers obtain the woman's IP address, travel out of their jurisdiction, threaten her with prosecution (for impersonation), and get her fired from her job. District court: Could be retaliation for protected speech.
- And in en banc news, the Ninth Circuit (over a dissent) will not reconsider its ruling that a Berkeley, Calif., requirement that cellphone retailers warn consumers about the danger of radiation (in technically accurate but perhaps misleading language) is constitutional. We discussed the case on the podcast.
In May, a Wisconsin judge struck down the state's ban on selling home-baked goods, ruling it lacked a "real or substantial connection" to public safety; rather, it served the interests of commercial bakeries that don't want competition. Which was a superlative ruling, but state officials argued it applied only to the three home bakers who brought the lawsuit. Sneaky! This month, however, the judge clarified that indeed all Wisconsin home bakers are free to sell home-baked goods (that do not require refrigeration) without the threat of thousands in fines or jail time. Read more here. New Jersey is now the only state to ban such sales.