The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice written by John Ross:
In August, we did a special podcast with the Harte family, who were subjected to a SWAT raid after police found tea leaves in their trash. To get a warrant for the raid, police said the leaves were marijuana. Did they lie to the judge? This month, a jury said there's not enough proof of that for the Hartes to recover damages. Read more here.
- During extensive planning process, transit planners estimate projected ridership numbers for proposed Purple Line connecting Maryland suburbs, D.C. Metrorail. But wait! Metrorail ridership has since declined precipitously as service quality has declined calamitously. Must the planners run the numbers again? The D.C. Circuit says no.
- D.C. transit officials reject Archdiocese of Washington's proposed Metrobus advertisements (scroll down for image). Unconstitutional viewpoint discrimination? No need to permit the ads while the suit proceeds, says the D.C. Circuit. Bonus vocab quiz: eleemosynary.
- Occupational Safety and Health Administration officials penalize Scotia, N.Y. sand-mining operation to the tune of $500k for workplace violations. But wait! Might this be a mine subject to the Mine Safety and Health Administration instead of OSHA? Secretary of Labor: No, OSHA. Admin law judge: Wrong, definitely MSHA. OSH Review Commission: We're split on the issue. Second Circuit: The Secretary's determination that OSHA has authority was reasonable and must be deferred to.
- Allegation: Stock exchange operators, like the NYSE and NASDAQ, sell certain market data at prices only high-frequency traders (who buy stocks and sell them within fractions of a second to take advantage of small changes in price) can afford, which allows such traders to exploit regular investors. Second Circuit: This suit should not have been dismissed.
- Plaintiff: By allocating 99 percent of Super Bowl XLVIII tickets to insiders and offering only 1 percent for sale to the general public, the NFL violated a New Jersey law banning event organizers from holding back more than five percent of tickets. Third Circuit: Plaintiff, who paid $2,000 on the secondary market for $800 face-value tickets, has alleged an injury sufficient for his suit to proceed.
- Allegation: Virginia corrections officers drive van erratically, injuring inmate in the back. District court: The officers are entitled to qualified immunity; it's not clearly established that "rough rides" are unconstitutional. Fourth Circuit: Indeed, the Supreme Court hasn't specifically addressed rough rides. But no reasonable officer could think maliciously assaulting a helpless prisoner is constitutional. Reversed.
- Federal officials (risibly) label rap group (the Insane Clown Posse) and its fans (known as Juggalos) a gang, whereupon Juggalos across the country are hassled by local law enforcement. Sixth Circuit (2015): Plaintiffs have standing to sue. Sixth Circuit: But the gang designation is not a final agency action because the harm the Juggalos cite is a result of third-party government officials' discretionary action and not the gang designation itself. Plaintiffs can't sue—at least not under the Administrative Procedure Act. Maybe file a civil rights suit? (We discussed the 2015 decision on the podcast.)
- In which the Sixth Circuit confuses carceral purgatory with carceral limbo. While mistakes of theology are not grounds for certiorari, all hope is not lost for plaintiffs challenging Michigan's sentencing scheme and parole system for youth offenders.
- Chinese police torture man who organized protest against eminent domain. Immigration judge: Because he sought just compensation, not because of his political beliefs. Send him back. Ninth Circuit: Not so fast.
- Large conglomerate of Catholic church-affiliated nonprofit hospitals claims statutory exemption from certain federal employee benefits rules. Plaintiffs: The exemption for churches and church-plans unconstitutionally favors religion in violation of the Establishment Clause. Tenth Circuit: No, it doesn't. And if the plaintiffs were right, we'd have to strike down religious accommodations in a wide swath of statutes.
- Deputy U.S. marshals handcuff felon at the entrance of his home for a supervised-release violation, and then do a "protective sweep" inside the house, where they find ammo, drugs; using that, they get a warrant and find a gun. Tenth Circuit: The first sweep was improper because deputies should have stopped the search after putting him in cuffs; evidence of the gun must be suppressed.
- Energy companies: The feds are leasing too few public lands for oil and gas drilling to satisfy the requirements of the relevant statute. Tenth Circuit (over a dissent): The new administration may not wish to defend existing leasing policy; we'll permit environmentalist groups to intervene for that purpose.
- Eleventh Circuit: No qualified immunity for Gwinnett County, Ga. officer who allegedly ripped suspect's mother's shirt, exposing her chest, and prevented her from covering up for a prolonged period while numerous officers searched her house. And no qualified immunity for a second officer who allegedly tased her as she tried to dial 911.
- The Eleventh Circuit makes short work of a long-running court battle over a zoning change that outlawed a woman's short-term rentals of her Morgan County, Ga. vacation home, holding that her federal claims are barred by the Rooker-Feldman doctrine. (The septuagenarian grandmother at the heart of the case was actually jailed for renting the home for too brief a period.)
Since 2014, much of Baltimore has been off limits to certain mobile vendors thanks to an ordinance requiring them to keep 300 feet away from fixed establishments that sell the same type of product or service. Last year, two food trucks challenged the 300-foot ban, arguing it has nothing to do with public health and safety and everything to do with pleasing the retail-business lobby. Last week, a Baltimore Circuit Court judge ruled the law is so vague and subjective that mobile vendors can't know if they are breaking the law—and neither can city enforcement officials. Read more here.