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.)
In 2015, the Supreme Court ruled that state occupational licensing boards and their members can be held liable for antitrust violations if their rulemaking and enforcement actions are found to benefit their industry, rather than the public. A bill working its way through Congress offers a way for states to shield boards from such liability: beef up judicial review of occupational licensing and/or establish an independent agency to supervise boards. IJ's Nick Sibilla has the story.
- Must the FCC require radio and TV broadcasters to translate emergency alerts into (numerous) other languages? It would be easier for the government agencies creating the alerts to do the translating, says the D.C. Circuit; but for now the FCC is studying the issue (admittedly on "bureaucracy standard time"), and there is no need to force their hand. Dissent: They've been studying for over a decade. They're stalling.
- Drug enforcement agents take keys from suspect, test them in several locks at Malden, Mass., building to ascertain which apartment is his. First Circuit: Which was unlawful, but there's no need to suppress the evidence.
- Actress accuses once-beloved comedian of sex assault in newspaper interview. The comedian's lawyer denies the allegations and demands a retraction in widely disseminated letter to the paper. Did the denial defame the actress? The 1st Circuit says no.
- Allegation: FBI agents lie on search warrant application, falsely claiming former analyst told hedge fund founder that he had obtained insider information. Investors flee the fund after the search; it folds. Can the founder sue the FBI and prosecutors? He cannot, says the 2nd Circuit; the founder traded on insider info, whether he knew it or not, and that's enough to have probable cause to search.
- Company only pays its employees when they are logged onto their computer. If they log off for more than 90 seconds, they don't get paid. Department of Labor: Employees must get paid breaks of up to 20 minutes. Third Circuit: Indeed. No more forcing employees to sprint to the bathroom if they want to keep getting paid.
- Fourth Circuit (2014): Man arrested for leafleting too close to circus after Baltimore police told him to stop has no recourse under the First Amendment, even though he had no notice of "policy" (spelled out only in an email from city staff to police) barring said activity. Fourth Circuit (2017): A different man arrested for the same thing shall get his day in court due to a higher level of constitutional scrutiny mandated by a pair of subsequent Supreme Court decisions (plus a crucial stipulation regarding the same).
- A publicly maintained 40-foot-tall cross that memorializes 49 Prince George's County, Md., soldiers who died in World War I is an unconstitutional endorsement of religion, says two-thirds of a 4th Circuit panel.
- Company buys property appropriately zoned for new self-storage facility. Panic ensues! Rockville, Md., residents believe self-storage facilities are magnets for crime, drug use, traffic congestion. Before the company can get its permits, officials ban self-storage warehouses near schools. (There is an elementary school down the block.) Fourth Circuit: No need to "dive deep into the case." No constitutional violation here.
- Allegation: Mental health staff at Pontiac, Ill., prison do not care for inmates in solitary confinement unless they self-harm. Which is an unconstitutional condition of confinement, says a seriously mentally ill inmate who has been in solitary for eight years and will be there for the next 10 (according to the prison's plans). Seventh Circuit: This claim should proceed despite the inmate's history of filing frivolous suits.
- Allegation: Chicago police retaliate against officer who reported misconduct (like white officers spitting tobacco in black families' homes) up the chain. Among other things, his sons are repeatedly detained; one is beaten. Seventh Circuit: His claim over the denial of retirement benefits, including health insurance, should not have been dismissed.
- Seattle officer says diminutive protester cursed at her, punched her in the chest. She yanks protester to the ground. But wait! Video emerges, and there is no cursing or a punch. (Prosecutors drop assault charges, though the protester allegedly loses her job as an EMT and her apartment.) Jury: No excessive force or unlawful arrest by this officer, but a second officer who pepper-sprayed the protester did use excessive force. Ninth Circuit (over a dissent): New trial on the claims against the first officer on account of bad jury instructions.
- Employee driving auto-dealership car is pulled over for a defective headlight. He doesn't have proof of insurance, for which he is ticketed and, after a bit of a scene, ultimately arrested. Wait a tick! Dealers' cars are not required to be insured in Kansas. Tenth Circuit: But the officer could have arrested him over the headlight. That he was arrested "for a crime he did not commit does not undermine the reasonableness of the arrest."
- Allegation: Staff at Pelham, Ga., prison do not care for inmate with Hepatitis C, which leads to liver cirrhosis. While the case pends, he develops liver cancer and dies. Eleventh Circuit: This claim (now pursued by his son) should proceed despite the inmate's failure to disclose his history of filing meritless suits.
- After low-speed chase, man disobeys Pima County police orders, exits his car, walks slowly around it. As he raises his hands (slowly), an officer releases a K9, which bites his leg, drags him around for 38 seconds and causes permanent disfigurement. Yikes! He was suffering from a dangerous diabetic impairment. Jury: Pay the man $650k. Arizona appeals court (over a dissent): Plus legal costs.
Last month, Gerardo Serrano sued Customs and Border Protection (CBP) after the agency seized his truck—and kept it for two years without giving him a hearing or charging him with a crime. Last week, CBP returned the truck, washed and waxed and with new tires and batteries. Which is good! But not good enough. Gerardo has been making loan and insurance payments on the truck plus paying for rental cars all this time, and the agency hasn't returned the bond he posted to contest the forfeiture. So the lawsuit is not over. In addition to damages, Gerardo is seeking a nationwide injunction to force CBP to give property owners prompt hearings. Read more here.