Short Circuit: A roundup of recent federal court decisions

A game of chicken, a chicken raid, and a family unfriendly food truck.

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice written by John Ross.

As of last week, Oregon no longer prohibits drivers from pumping their own gas (in counties with 40,000 or fewer residents), a change that some bemoan—to the bemusement of a great many others who have mastered the skill. Over at, IJ Legislative Analyst Nick Sibilla ruminates on why such silly regulations persist. Click here to read.

  • New York officials deem food truck, the Wandering Dago (image here), family unfriendly, deny permit for summer-long Albany event. Truck owners: The name is irreverent; it weakens the derogatory force of the slur. Second Circuit: Officials' violated the owners' free speech and equal protection rights under both the federal and state constitutions.
  • Motorcyclists play drunken game of chicken, collide. Insurer: We'll not cover plaintiff's medical expenses; his plan doesn't cover injuries that result from the "illegal use of alcohol." Sixth Circuit: Pay the man. His drinking was legal; it was his driving that was illegal. Partial dissent: That doesn't seem right, but the insurer should have written a clearer contract.
  • While corresponding with the lawyer for a nonprofit, the City Attorney for Grand Rapids, Mich. discovers that the nonprofit employs the mother of a developmentally disabled rape victim who had previously sued the city. City Attorney proceeds to call the victim a "crack and heroin whore" and warns lawyer away from dealing with nonprofit. Word gets back to the victim's parents, who sue. Sixth Circuit (over a dissent): Qualified immunity.
  • Ohio man throws his now ex-wife against a wall and knocks her down. He spends one day in jail, has not been convicted of a crime in the 20 years since. Does the federal ban on domestic violence misdemeanants owning firearms unconstitutionally burden his Second Amendment rights? Sixth Circuit: No. Dissent: None of the gov't's evidence shows that folks who haven't reoffended for decades are especially dangerous, and you need some evidence if you are going to take away a fundamental right.
  • Allegation: Presque Isle County, Mich. prosecutor decries state narcotics officers' rogue interrogation tactics and witness intimidation, among other things. The officers initiate investigation into the prosecutor's heavy use of pain medication, resulting in charge (that is promptly dismissed). Can the prosecutor sue the officers for retaliating against him, arresting him without probable cause? Sixth Circuit (over a dissent): No.
  • Claim: Indiana law requiring separation of beer wholesalers from liquor wholesalers is preempted by federal motor carrier law, which restricts state restrictions on carriers' services. Seventh Circuit: Plaintiff need not violate the law in order to challenge it; the threat of prosecution suffices. Proceed to the merits.
  • Personal correspondence sent to Cape Girardeau County, Mo. jail must be on postcards, and inmates can only have 10 postcards in their cell at a time. Mother of inmate: When I send multiple cards, they arrive out of order, making them confusing to read, especially if there are more than 10. Moreover, there's no evidence banning letters has cut down on contraband entering the jail. Eighth Circuit: No constitutional problems here.
  • Occupant of car that crashed into St. Paul, Minn. house (during gunfight with occupants of another vehicle) flees the scene on foot, leaves his cell phone behind. Did he retain a reasonable expectation of privacy in the phone? The Eighth Circuit says no.
  • Teenager murders two young women in Long Beach, Calif. in 1981, is sentenced to death. But, says two-thirds of a Ninth Circuit panel, had the jury heard about his tortured childhood, it's likely at least one would not have voted to convict him of first degree murder. Habeas granted. (Notably, one of the judges in the majority died before this decision was released but concurred in the opinion before his death.)
  • In California, retailers may charge customers who pay by credit card more than those who pay by cash, but they can only legally describe the price difference as a "cash discount" calling it a "credit card surcharge" is illegal. Ninth Circuit: The government has pointed to no evidence that this restriction on commercial speech is necessary. It violates the First Amendment.
  • An Idaho law criminalizing surreptitious recordings in animal production facilities violates the First Amendment, says the Ninth Circuit, as does (over partial dissent) a ban on employing ruses to gain access to such a facility. But barring activists from employing ruses to gain employment at such a facility is permissible.
  • Allegation: Unpaid volunteers on New Mexico animal cruelty task force accompany law enforcement on raid of suspected cockfighting operation. The volunteers make false, "absurd" statements to law enforcement concerning the legality of steroids that plaintiffs administered to their poultry; officers then use those statements to secure search warrants. Hundreds of birds are seized and destroyed, but no charges are ever filed. Tenth Circuit: Qualified immunity for the volunteers. It's not clearly established that private citizens who make recklessly false statements to law enforcement are liable for any resulting constitutional violations.
  • Protesters protest the travel ban in Denver airport without first obtaining permit, which must be sought at least seven days before engaging in speech-related activity. No arrests made, but there could have been. District court: Several of the airport's speech restrictions may be unconstitutional; among other things, there isn't a formal process to expedite a permit request and a ban on signs larger than 1 foot by 1 foot is not reasonable. Tenth Circuit: In fact, plaintiffs are unlikely to prevail, so the preliminary injunction is reversed.
  • USA Swimming arbitrarily and capriciously blacklisted Loudoun County, Va. swim coach after allegations of sexual relations with a minor, says arbitrator; reinstate him and pay his legal fees—but no need to pay damages. Tenth Circuit: Can't seek damages here.
  • In 1973, Chilean officer murders folk singer (the "Bob Dylan of South America") after three days of torture in Santiago soccer stadium. In 1989, the officer moves to the U.S., which has declined to extradite him. In 2016, a jury orders the officer to pay the singer's family $28 mil for violations of the Torture Victim Protection Act. Eleventh Circuit: But the family's claims under the Alien Tort Statute were properly dismissed, as the relevant conduct did not take place on U.S. soil.

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