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.)
- Chilean citizen (the owner of a fashion museum) sues his cousin, also a resident of Chile, who had power of attorney over his finances and allegedly stole tens of millions. Does a RICO lawsuit by a Chilean against another Chilean over injuries that occurred in Chile belong in American courts? District court: Nope. Second Circuit: Up to $43 million of the property was stolen while it was in a New York bank, so claims related to that property can proceed.
- Nearly 13,000 women allege intrauterine device perforated, migrated from uterus after insertion-a possibility the manufacturer did not warn of. Second Circuit: Plaintiffs' experts aren't sufficiently expert; they assume rather than explain what happened. Their testimony was properly excluded.
- Allegation: Colleyville, Tex., SWAT shoot, kill armed mentally ill man next to his teen daughter, who'd been trying to de-escalate. An officer picks her up, slings her over his shoulder, throws her over a fence, and puts her handcuffed in a patrol car for two hours. Can she sue the officer? Fifth Circuit: No. The officer is immune to liability, even if he unlawfully seized and used excessive force on her. (But, separately, she can sue a Texas Ranger who subsequently interrogated her for five hours.)
- Developer of Williamson County, Tenn., planned community maneuvers homeowners into 25-year contracts whereby they must purchase telecom service from company (owned by developer) that does little other than charge a premium to contract with an actual telecom provider. Which could be an antitrust violation, says a much divided Sixth Circuit panel.
- Allegation: Motorist has epileptic seizure, drives onto lawn, exits vehicle, clings to fence, does not comply with a Miami County, Ohio, officer's requests. The officer pries the motorist off the fence and body slams him. He's Tased eight times. Sixth Circuit: Could be excessive force.
- At campaign rally, then-candidate Trump urges his supporters to remove protesters without hurting them. (Trump: "If I say 'go get 'em,' I get in trouble with the press.") His supporters then assault three protesters, who seek to sue Trump for inciting violence. District court: Proceed. Can Trump appeal right away, or must he wait until the end of the trial? Sixth Circuit: This is an exceptional case that presents a novel question; we'll entertain the appeal now.
- At defendant's first trial, key gov't witness recants murder accusation. At second trial (necessary because of prosecutorial misconduct in the first), the witness fingers defendant and denies having recanted; the prosecution does not correct her. Seventh Circuit (en banc): No need for a new trial. The defense had the opportunity to point out the perjury; and besides, the witness's lies could've helped the defense discredit her. Dissent: "Those were lies, and the prosecutors knew they were lies. Yet the prosecutors did nothing." Separately, the prosecution "pulled a blatantly racist stunt" by quoting a particular passage from Gone With the Wind.
- Milwaukee police in two cars suddenly box in, shine spotlights on car idling outside liquor store and forcibly remove the passengers. Seventh Circuit (sitting en banc): They were parked too close to a crosswalk, so officers had probable cause to approach. No need to suppress the evidence. Dissent: This kind of enforcement would never be tolerated in a more affluent neighborhood; the offense here is aptly called "parking while black." (We discussed the original panel decision on the podcast.)
- A Santa Barbara County, Calif., deputy witnessed another deputy beat a handcuffed detainee, but omitted key details of the beating in his report to the county jail. Did the deputy obstruct federal law enforcement? Not unless he had some reason to believe the report would actually reach federal officers, says the Ninth Circuit.
- San Diego Comic Convention sues organizers of Salt Lake Comic Con for violating their "comic con" trademark. In bid to rally support among the fandom of the hundreds of "comic cons" held across the country, the Salt Lake organizers publicly share details about the lawsuit; it works, with 200K+ media articles on the case, mostly friendly to the defendant. District court: Salt Lake Comic Con must stop talking about the case and using the term "comic con"-you're tainting the jury pool! Does the court's gag order violate Salt Lake Comic Con's free speech rights? Ninth Circuit: Yes. Courts can't ban discussion of a case without a very good reason, like grisly crimes or national security.
- Man stabs Orange County, Calif., police officer, runs away. A second officer chases, shoots him. He falls, and the officer fires at him nine more times from close range and then takes a running start and stomps on his head three times. He dies. Ninth Circuit: Police can use deadly force on an immediate threat, but they have to stop using deadly force when the suspect isn't dangerous anymore. A jury should decide if the second round of shots and/or head stomps were excessive force. Video here (consider yourself trigger-warned).
- On remand from SCOTUS, the Tenth Circuit extends qualified immunity to three officers who allegedly approached a rural New Mexico home at night without a good reason and without clearly identifying themselves and shot and killed a resident-even though defendants' lawyers misled the court about a key detail concerning the officer who fired the fatal shot.
- Cottonwood Heights, Utah, officer investigating missing medications looks up ambulance employees' prescription records-without a warrant. A Fourth Amendment violation? People do have some right to privacy concerning their prescriptions, says the Tenth Circuit, but the officer gets qualified immunity.
- And in en banc news, the Fifth Circuit will reconsider its decision that an exoneree who pleaded guilty is precluded from suing officials for withholding the evidence that cleared him.
Miami Shores, Fla., residents can have just about anything in their front yard, including fruit, trees, shrubs, grass, flamingos, garden gnomes, jet skis, and boats. But in 2013, village officials outlawed vegetable gardens, forcing Hermine Ricketts and Tom Carroll to tear out the garden they'd tended for 17 years and from which they grew more than half of what they ate. This week, a Florida appeals court concluded that the vegetable ban is rational and that officials' aesthetic sensibilities trump the peaceful and productive use of one's own property. Read more here.