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.)
New on the podcast: the right to engage in prostitution, gun sales too close to residences, self-storage too close to a school, and leafleting too close to a circus.
- Seventeen-year-old illegal immigrant in gov't custody seeks an abortion. Gov't: To do so, you must first find foster parents in the U.S. or agree to depart the country. D.C. Circuit: No.
- Consumers allege that eye-drop droppers render eye drops that are too large, unavoidably waste pricey medication, in violation of several states' consumer protection laws. District court: That is not a sufficiently serious injury. Third Circuit (over a dissent): It is.
- A Philadelphia landlord need not continuously renew the lease of longtime (model) tenants, says two-thirds of a Third Circuit panel, despite statutory language saying tenants on (a particular type of) rent assistance "may elect to remain."
- Drug suspect (who turns out to be innocent) is arrested in April, sits in Choctaw County, Miss. jail without seeing a judge until August. Sheriff: The court was out of session. Fifth Circuit: "There is no sanction, historical or modern," for such a delay. Even though the sheriff had a warrant and a grand jury indictment, detaining the suspect for that long without seeing a judge violated her due process rights.
- Allegation: Informant making drug buy inside Pearl, Miss. house signals that she is in danger. Officers charge into different house, point guns at innocent family, including mother with an infant, and rough up the father. They don't announce themselves; the son calls 911 to report armed intruders. Fifth Circuit: No qualified immunity. (And in unrelated news from Pearl this week: mother forbidden contact with infant for 14 months over unpaid court fees.)
- Sixth Circuit: No need to disturb the convictions, sentences of five Cleveland men set up by ATF to rob nonexistent drug house. Concurrence (referencing an investigative news report): These stings should cease. Rather than targeting violent criminals, the gov't is expending its resources to induce small-time crooks (typically low-income minorities), including, in this case, a gainfully employed young man with no criminal record, into crimes carrying lengthy sentences.
- Detroit oil refinery has been in continuous operation since 1930. In 2016, nearby residents sue, alleging that noise, odors, and contaminants from the refinery interfere with the enjoyment of their properties. District court: The alleged injuries commenced more than three years ago; the deadline to file suit has passed. Sixth Circuit: Reversed. Each day's discharges are a new injury.
- Lincoln County, Mo. officer sexually assaults drug court participants in their homes, in jail, in his patrol car. In 2015, the Eighth Circuit rules that five victims cannot sue the sheriff for negligent supervision. Their claims against the county go to a jury, however, which awards each of them at least $500k, and this week the Eighth Circuit affirms the verdict.
- Man is convicted of grizzly murder. Must he bear the penalty? At a bare minimum, he should get a new trial, says the Ninth Circuit, as it might have been self-defense.
- Motorist sprints away from traffic stop. Las Vegas officer apprehends him, proceed to tase him more or less continuously for over 90 seconds (even after backup arrived, and for 10 seconds simultaneously with another officer), though the motorist neither resists nor threatens officers. He dies. Ninth Circuit: Which might well violate the Fourth Amendment. This goes to a jury.
- The majority of a Ninth Circuit panel upholds Montana's limits on contributions to political candidates—despite no evidence that there is a problem with actual corruption in the state—because the limits address "the risk of … perceived quid pro quo corruption."
- Consumer pays a premium for flushable wipes, finds they are not actually flushable. False advertising? District court: They didn't damage your pipes or the sewage system. Case dismissed. Ninth Circuit: Reversed. She alleged the wipes don't disintegrate in suitably timely fashion, which is enough for the case to proceed.
- Woman buys high-end cars, leases them to owner of rental car business. He stops paying her; she defaults on loan payments. But wait! He is an FBI informant. Did the gov't have a duty to protect her against such losses? It did not, says the Eleventh Circuit.
- Rap artist is murdered outside hospital while his girlfriend is giving birth. Yikes! The man police and prosecutors think is responsible is an FBI informant (same gentleman as above). Did the gov't violate a duty of care? The Eleventh Circuit says no.
- FBI agent reports to superior that, among other misdeeds, two pilots used agency aircraft to solicit prostitutes. He's fired. Retaliation? By law, he can challenge his dismissal either internally or in front of an independent agency. He picks the independent agency. Federal Circuit (en banc): Bummer. Because you can't raise a whistleblower defense unless you appeal internally. Dissent: Parsing the relevant provisions reminds one of "predicting divine will by studying animal entrails."
Esteban Narez wants to earn a living as a farrier, and Bob Smith, who owns California's only full-time horseshoeing school, wants to teach him. But California prohibits Bob from enrolling Esteban because Esteban lacks a high school diploma. Which is a real shame because the pay and work flexibility from shoeing horses would be a significant improvement for Esteban, who currently works seven days a week doing odd jobs on a ranch to support his family. This month, Esteban and Bob filed a First Amendment lawsuit, arguing it's unconstitutional for the state to require Esteban to pass a high school equivalency exam unrelated to horseshoeing before he can go to trade school. Read more here.