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.
This week, Alabama legislators introduced a bill that would eliminate civil forfeiture, meaning the state would no longer be able to take property from people acquitted of—or never charged with—a crime. Over at Forbes.com, IJ Legislative Analyst Nick Sibilla has the story.
- Among many other indignities that Providence, R.I. firemen heap on female colleague, station cook gives her meals that make her sick. (When she switches plates with another colleague, he gets sick.) She files 40 different written statements complaining of harassment, discrimination, and retaliation to higher-ups. First Circuit: No need to reconsider the jury verdict in her favor or her $700k award.
- Despite plentiful plaintive pleas for a speedy trial, Cattaraugus, N.Y. man spends seven years in jail awaiting trial (for large marijuana grow). Second Circuit: Which, so far as we know, is a new record in this circuit. It's also an "egregiously oppressive" violation of the Sixth Amendment. Conviction reversed. He's a free man.
- Federal law requires federally licensed handgun dealers to sell only to the residents of the state where the dealer is located. D.C. residents: The sole licensed dealer in D.C. has no inventory, just charges a fee to import guns from other dealers. We want to buy directly from a dealer in Texas. District court: The law is unconstitutional. Fifth Circuit: Reversed. It satisfies strict scrutiny. Can't expect dealers to understand each states' multifarious gun restrictions.
- Ohio's requirement that coin and jewelry dealers allow warrantless inspections of their businesses at all times violates the Fourth Amendment, says the Sixth Circuit, as it gives inspectors too much discretion to search whatever they will. (Other provisions authorizing warrantless access to specified records, so as to check trade in stolen property, pass constitutional muster, however.)
- After man is acquitted of manslaughter, Franklin County, Ohio sheriff delays his release in order to administer DNA cheek swab. A Fourth Amendment violation? Sixth Circuit (2015): State law didn't require the swab; the sheriff is not protected by sovereign immunity. Sixth Circuit (2018): Though the man has died, the case isn't over; his mother can proceed.
- Wilson County, Tenn. probation officer is fired for (allegedly) lying in court. A violation of her First Amendment rights and/or the Tennessee Public Employee Political Freedom Act? The Sixth Circuit says no.
- Mentally ill inmate at Marquette, Mich. prison repeatedly swallows razor blades. He's placed in solitary confinement rather than the mental health unit. Were officials deliberately indifferent to his medical needs? Yes, if the inmate's allegations are true, says the Sixth Circuit.
- Allegation: Evansville, Ind. and Kentucky state police deliberately coerced false confessions out of teenagers whose uncle's body was found in the Ohio River—near bridge where he'd threatened to commit suicide several times. Later, officers file false reports that corroborate the confessions. (Charges against the niece are dropped. The nephew is acquitted on all counts.) Seventh Circuit: No qualified immunity for the officers.
- Arkansas state police relieve truckers of $579k cash at traffic stop. (No charges filed.) The trucking company asserts ownership of the cash, seeks its return. Eighth Circuit: In other circuits that would be enough to initiate a forfeiture challenge. But here claimants must explain in some detail how they came by the cash, which the company did not do to prosecutors' satisfaction, and thus may not pursue the money.
- Peoria, Ariz. parents take completely innocent nakey photos of their young children, so in years to come they can reminisce, "look at their cute little butts." Child services take the children without a warrant or court order. The kids spend two days in foster care and a month with grandparents before they're allowed home. (According to news reports, the mother was suspended from her job for a year). Ninth Circuit (with four separate opinions): No qualified immunity for the social workers.
- A refresher on jury nullification from the Ninth Circuit: Judges may tell jurors that it is a violation of the law for them to acquit a guilty defendant if they believe defendant's conduct should not be illegal. What a judge may not do is imply that jurors will face punishment for violating the law or that their verdict will be thrown out if they acquit.
- Colorado prison officials decline to pay $50 awarded to inmate in 2005. Officials: Because he has failed to report the award to the IRS. Tenth Circuit: That is not a requirement that exists.
- Denver physician pays $1mil via credit cards for wine, pays off the balance on the cards. Yikes! The wine seller turns out to be a crook; the physician never receives the wine. Must the credit card companies refund him? The Tenth Circuit says no.
- After stealing $5 and a bottle of cologne, 63-year-old San Francisco man is arrested. Bail is set at $350,000, which he cannot possibly pay. California Court of Appeals: Unless the government can show that he's dangerous, they can't keep him locked up merely for being too poor to afford bail.
- Pennsylvania motorist arrested for DUI spends nine months in jail (allegedly causing him to be expelled from university) before a state judge reviews dashcam footage and is unable to detect the unsignaled lane changes that police say they pulled him over for. Without probable cause for the stop, the evidence is suppressed and charges withdrawn. The man sues the police in federal court. District Court: The state court ruling does not preclude the officers from arguing in federal court that the stop was reasonable.
- And in en banc news, the First Circuit will reconsider its decision that the governor of Maine is immune from a retaliation suit that alleges he threatened to withhold discretionary funding from a public charter school if it hired his political enemy. The Ninth Circuit, however, will not reconsider its decision that a former high school football coach had no First Amendment right to conduct prayers at midfield after games.
In Maryland, it's illegal to sell homemade food except at farmers' markets and special events. But there's precious little evidence that and other restrictions on cottage foods are necessary to protect public health and safety. We say that the state should ease restrictions with no public health justification, so as to encourage entrepreneurship in the industry (which nationally is overwhelmingly made up of rural women with below-average incomes). If you agree, please join us this Tuesday in Baltimore to learn more about the laws and how you can get involved. Click here for more.