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.
The Eighth Amendment prohibits the federal government from imposing excessive fines, but does that protection apply in state court? The Indiana Supreme Court recently said no and allowed officials to take a man's $40,000 car, purchased with money the government admits was lawfully obtained, after he was convicted of a minor drug crime. This week, IJ asked the U.S. Supreme Court to take the case. Read more here.
- The D.C. Circuit, sitting en banc, says that the structure of the CFPB, whose single director does not serve at the pleasure of the president, is constitutional. Nonetheless, (as a dissent characterizes it) the CFPB "flunked 'Rule of Law 101′" by reinterpreting a statute and retroactively enforcing it against the petitioner, so the agency's enforcement action can't stand. (Click here for the highlights of the 250-page ruling from Aaron Nielson.)
- Jury: An internet service provider must pay $25 mil to a music copyright holder because the ISP failed to take sufficient measures to prevent its customers from illegally downloading music. Fourth Circuit: The ISP is likely liable, but new trial and no need to pay the $25 mil because of bad jury instructions.
- Man pleads guilty to failing to register as a sex offender, serves two years in prison, and attempts to register upon his release. Whoops! Texas officials decline to put him on the registry, say he isn't actually required to register. Fifth Circuit: The man's attorney failed to conduct even a cursory review of the case law before advising him to plead guilty. That was ineffective, and the guilty plea is vacated.
- Is an inmate entitled to a preliminary injunction when prison officials allegedly switch his special diabetes diet to a "sugar based diet," causing him to have a heart attack? Uh, yeah, says the Fifth Circuit, that would probably violate the Eighth Amendment.
- In response to court order, Angola, La. prison officials install portable ice chests with fans for death row inmates whose medical conditions are exacerbated by the sweltering conditions in the "state-of-the-art" facility. Fifth Circuit: Which is probably reasonable, but the district judge should not have ordered officials to ensure plaintiffs' quarters do not exceed 88 degrees. Reversed and remanded. (We discussed the Fifth Circuit's previous decision in the case, which reproved officials for cheating during the court-ordered temperature monitoring period, on the podcast.)
- Two campaign finance rules that Austin, Texas imposes on candidates, banning them from fundraising except in the 180 days before an election and requiring them to spend or return all but $20k of their campaign funds after election, violate the First Amendment, says the Fifth Circuit. Another provision, capping individual contributions to a candidate at $350, passes muster, however.
- Allegation: Detroit police arrest wrong man, keep him in jail for two weeks despite having fingerprints and mugshots at their disposal that would have cleared him. Sixth Circuit: The man can sue the arresting officer.
- After her son dies in a fire, Indiana police accuse woman of setting the blaze. When an ATF investigator finds no evidence of arson, state police persuade him to change his testimony. The woman is wrongfully convicted and spends 17 years in prison. Can she sue the ATF agent? Maybe, says the Seventh Circuit; we remand for fact finding about the agent's official duties.
- When Jackson County, Ore. teachers go on strike, the school district can prohibit them from picketing on school property, right, because picketing is speech on behalf of the school district, right? That makes no sense, says the Ninth Circuit; everyone knows the teachers were speaking only for themselves.
- Families of government contractors killed by ISIS sue Twitter for providing material support to terrorism. Ninth Circuit: At most, plaintiffs have established that Twitter facilitated the growth of ISIS, not that Twitter facilitated these particular terrorist acts. No liability.
- Minor in deportation proceedings says he has the right to court-appointed counsel on the government's dime. The Ninth Circuit says, "Pony up, kid."
- Can the FBI invoke the "law enforcement purposes" exception to Freedom of Information Act for training materials designed generally for crime-busting, or must it identify a specific statute it was trying to enforce? Crime-busting is enough for this Ninth Circuit panel.
- "The Lahaina Wells and the Effluent Injections" is either the world's worst young-adult novel or the topic of this Ninth Circuit Clean Water Act ruling. (Or, depending on the success of your editor's book proposal, both.)
- Does the term "groceries" in a contract refer to just food or to food and household goods? Eleventh Circuit: We were very clear about this the last time the question was before us, in 2014, and yet the losing party's lawyer persuaded the district court to defy our decision. (Footnote: Just for the record, here is that lawyer's name.)
- Tinder charges different prices for users over and under the age of 30. California appeals court: Which is unlawful age discrimination. "Accordingly, we swipe left, and reverse."
- Pima County, Ariz. police are summoned to help suicidal man. Instead, an officer shoots him in the chest as he cuts his own throat. The man survives. Other officers file bogus charges against him, visit him in the hospital (against his attorney's wishes) where they lie to him, try and get him to sign a release form, and surreptitiously record him. A jury finds the shooting unjustified; the man is awarded $5 mil. Arizona appeals court: He still gets the $5 mil, but a partial retrial is necessary; the jury may have unfairly held the officers at the shooting liable for the actions of the other officers.
- And in en banc news, the Ninth Circuit will reconsider its holding that a San Francisco law requiring warning labels on sugary drinks likely violates the First Amendment.
In 2012, Coloradans for a Better Future (CBF), an advocacy group, ran a radio ad opposing a candidate for state office who admitted to misstating his educational credentials. The candidate lost, but in retaliation he filed several lawsuits against CBF alleging petty violations of the state's campaign finance laws. Unable to pay for its legal defense, CBF contacted an attorney for pro bono help shutting down. But that prompted another lawsuit, wherein the candidate argued that by failing to report the free legal services as a "contribution," CBF had again violated the law. Broke and defunct after years of harassment, the group didn't even file anything with the Colorado Court of Appeals, which ruled against it in 2016. But last week, after IJ stepped in to represent CBF, the Colorado Supreme Court unanimously reversed. The ruling means the countless individuals and groups who rely on free legal advice to navigate the state's campaign finance system can continue to do so. Click here to read more.