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.)
This week on the podcast: No qualified immunity for officer who forced teen to masturbate, no habeas for man convicted after prosecutor lied, and no eminent domain for private development. Click here for iTunes.
- Area landowner must feel like he's Back in the U.S.S.R. after reading this Beatles-themed First Circuit opinion barring his claims for damages after the feds removed 25 shade trees from his property to combat invasive Asian longhorned beetles.
- The Supreme Court recently held that prolonging a traffic stop by making investigatory inquiries unrelated to the traffic infraction in question violates the Fourth Amendment. Second Circuit: So detaining a red-light runner for five minutes to inquire after his suspected drug dealings was unconstitutional. No need to suppress the evidence though, as the traffic stop here happened before the Supreme Court issued its ruling.
- College students agree to work at media corporation for no pay. Are they employees, and thus entitled to minimum wage, or are they interns? Second Circuit: Interns, by light of a seven-factor test we created last year to deduce which party is the "primary beneficiary" of the work experience.
- Can auditor, who is seeking out property Delaware can escheat, audit two companies' Ohio-based subsidiaries? Sure thing, says the Third Circuit. If, as the companies allege, the audit process is an abusive one designed to force a settlement, they can stop complying and see if Delaware comes after them. (We discussed escheatment, from which the verb "to cheat" is derived, on the podcast.)
- Allegation: Manassas City, Va., officer investigating illicit images sent to 15-year-old girl orders her 17-year-old boyfriend to masturbate—in front of armed officers—to compare his erect penis with the illicit images. District court: Qualified immunity. Fourth Circuit: Reversed. There may be no prior cases on point, but some things are so obviously unconstitutional that officers shouldn't need to be told. Dissent: The officer had a warrant. (Related: The officer killed himself as police tried to arrest him for molesting other boys.)
- Conroe, Tex., officers board Greyhound bus at rest stop. One passenger seems suspicious, and indeed his luggage contains contraband. District court: Suppress the evidence. Hassling a bus full of people without any individualized suspicion offends the Constitution. Fifth Circuit: Reversed. The Supreme Court is fine with such stops; defendant could have just declined to speak with the officers.
- Knox County, Tenn., inmate falls from bunk, breaks neck, does not receive proper medical attention for 70 days. Jury: The county must pay him $140K. Sixth Circuit: Indeed, it must.
- In year when tax assessments fell for over 99 percent of Roscoe Township, Ill., properties, couple who started petition against town assessors entering property without notice or permission are hit with sizable tax increase. Seventh Circuit: Can't sue over that in federal court.
- Indiana's new teacher-tenure rules allowed a school district to retain an untenured teacher while laying off an otherwise-satisfactory tenured teacher who had "received critiques about his interpersonal skills"—and that, says the Seventh Circuit, violates the Contracts Clause.
- Allegation: Cook County, Ill., jail officers hold inmate several months past his release date (more than doubling his ordered time behind bars), hinder his efforts to reach court, which eventually orders him freed posthaste. He sues two years and two weeks after his release. Seventh Circuit: That's two weeks too late.
- Montana's ban on judicial candidates seeking, accepting, or using endorsement from political parties does not violate the First Amendment, says a Ninth Circuit panel; the public might perceive that a judge so endorsed is insufficiently impartial or independent (when interpreting legislation favored or opposed by the endorsing party, for instance).
- Man seeks to host weddings on his rural Ventura County, Calif., property, but the neighbors object, and county officials deny him a permit. Ninth Circuit: The permitting scheme gives officials way too much power to withhold permits for any reason or no reason. The man's First Amendment claim should not have been dismissed.
- Mayes County, Okla., officer shoots into home 10 times, kills man. Officer: The man was on the porch; he fired a gun at me. Family: He was inside; he didn't fire the gun; the officer never identified himself. Tenth Circuit: No qualified immunity. The house had 10 bullet holes, and two bullets were found in the man. Which indicates he was inside the house (with several children and his wife) when the officer fired.
- Auto dealers do not have standing to challenge Missouri officials' decision to allow Tesla to sell its cars directly to the public, says a Missouri appeals court, which suspects the dealers are more interested in squelching competition than defending the public's interests.
- And in en banc news, the Eleventh Circuit will not reconsider its decision that a company that requires employees to remove dreadlocks can't be sued for racial discrimination. Dissent: The complaint adequately alleged dreadlocks are a natural state of black hair; this should have gotten past a motion to dismiss.
Last year, Washington, D.C. officials imposed new regulations requiring daycare workers to obtain college credentials in early childhood education. But according to the very report that officials cite as the impetus for the change, there is no empirical support for the city's position that the rules will benefit kids. Instead, the requirements will reduce parents' options and drive up child care costs, which are already the highest in the nation for kids below preschool age. There is no reason why someone working with two-year-olds needs to take math, English literature, and public speaking classes, all of which are required by local colleges' programs. But it's not too late! The city has reopened a public comment period. Learn more here and submit a comment here.