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.
Over at the estimable EconTalk podcast, IJ's own Dick Carpenter discusses bottleneckers, who agitate for occupational licensing and other regulations that make earning an honest living needlessly difficult. Click here to give it a listen.
- Five commercial truck drivers cited for safety violations sue the feds, whose trucker database includes the citations but not the subsequent acquittals and dismissals of the same. Truckers: The feds won't update the dated data, hurting our job prospects. District court: Cannae sue over that. D.C. Circuit: Two of the drivers can, as their records were shared with potential employers. The other three have not been harmed because the feds haven't shared their data.
- Baltimore officials pass ordinance requiring clinics that provide free pregnancy-related services—but not abortions or abortion referrals—to post signs in their waiting rooms informing patients of this fact. Unconstitutional compelled speech or a reasonable effort to prevent such clinics from misleading patients, who may believe the clinics do provide abortion services? Fourth Circuit: a First Amendment violation. There's no evidence in the voluminous record that anyone has been misled.
- Man fails to update his sex offender registration when he moves abroad, so he is sentenced to 673 days. While serving his sentence, gov't deems him sexually dangerous person, subjects him to civil commitment. But wait! The Supreme Court later holds failing to update one's registration if they move abroad is not a crime; man's conviction is vacated. Free him? Fourth Circuit: No. Dissent: There's a constitutional problem with keeping a man in custody for seven years without a valid conviction.
- Lexington-Fayette Urban County, Ky. officials ban leaving unsolicited written materials on people's driveways, yards—which means publisher of free weekly paper will have to leave it in a mailbox, betwixt an interior and exterior door, or another statutorily prescribed place. A First Amendment violation or a reasonable attempt to cut down on visual blight and litter while protecting property owners from unwanted paper? District court: Probably the former. Sixth Circuit: Reversed. The ordinance can go into effect while the publisher's suit proceeds.
- Cleveland police officer: I shot suspect, killing him, after he declined to get out of car, reached for gun. Witnesses: The suspect was kneeling on the ground with his hands up when the officer shot him in the back of the head. Jury: Excessive force. District court: Pay $4 mil. Sixth Circuit: Affirmed. (The officer is still on the force.)
- Cincinnati ordinance: When bidding on water treatment contracts with the city, would-be contractors must certify whether they provide health care and retirement benefits to employees. Contractor: The city is unlawfully rigging the bidding system to favor unionized contractors—who provide better benefits than what federal law requires—over non-unionized contractors who comply with federal law. Sixth Circuit: Perhaps, but it doesn't matter because federal law permits the city to set whatever terms it wants with whatever contractor it wishes in this instance.
- Missouri requires African-style hair braiders to undergo costly (nearly $12,000 on average) and time-intensive cosmetology/barber training (1,500/1,000 hours respectively) that, by the state's admission, is almost entirely irrelevant to braiding. An unconstitutional restriction on the right to earn a living? The Eighth Circuit says no; officials are free to impose "needless, wasteful" requirements. (This is an IJ case. Another concession not mentioned in the opinion: None of the three health and safety issues specific to braiding identified by the state's experts are addressed by the licensing scheme. See page 12–13.)
- To bolster the endangered northern spotted owl, the feds ban logging on millions of acres in the Pacific Northwest. Yikes! Instead, a more aggressive species from the East Coast, the barred owl, moves in. The northern spotted remains as endangered as ever. Now the feds plan to kill up to 1,600 barred owls. Plaintiffs: Illegally! If you're going to "take" a species, it must be to benefit that species—not to benefit another species. Ninth Circuit: Not so. The feds can proceed. (Click here for more on northern spotted v. barred.)
- Woman taking ski lesson at Keystone, Colo. resort breaks her leg as she tries to exit chairlift. Must the resort operator pay damages? Indeed not, says the Tenth Circuit. She signed a waiver waiving liability for lift-unloading accidents, and there's no sound reason to waive that waiver or to waive the other waiver that was printed on the back of her lift ticket.
- Tenth Circuit: No need to overturn the tax evasion and related convictions of Douglas Bruce, the former Colorado state legislator who wrote the state's Taxpayer Bill of Rights, which requires legislators to submit a ballot initiative to the voters whenever they want to raise taxes. (Last fall, NPR did a deep dive on Bruce.)
- Lolita the killer whale has lived at Miami Seaquarium since 1970. Do the conditions of her confinement, including sharing her tank with dolphins that engage in inappropriate sexual behavior, amount to "harm" and "harassment" in violation of federal statute? The Eleventh Circuit says no.
- Palm Beach County, Fla. officer stops bicyclist; four seconds later, he shoots the cyclist four times at point blank range, rendering him a paraplegic. Jury: Excessive force. District court: Pay him $22 mil. Eleventh Circuit: Vacated. The jury got bad instructions. Dissent: The officer didn't challenge the instruction the majority seizes on; neither side briefed whether it was incorrect; and it wasn't.
- Allegation: Woman angrily protests ejection from Macon, Ga. concert. Though she's "totally compliant," an officer takes her to ground without warning, breaking her arm. Gratuitous force? District court: A jury should decide. Eleventh Circuit: Reversed. The officer is entitled to qualified immunity.
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