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.
In a recent letter to the state's judges, Ohio Supreme Court Chief Justice Maureen O'Connor decried "unfortunate practices in some state and local courts where fine, fee, and bail systems essentially operated on 'automatic pilot' with little, if any, regard for fundamental constitutional rights" and treated citizens like ATMs. IJ Legislative Analyst Nick Sibilla has the story.
- After exchanging "inner city" "pleasantries" with plainclothes Hartford, Conn. police officer driving unmarked car, former pro football player has the ever living crap beaten out of him. Second Circuit: For which—13 years later—he is entitled to $454k.
- Allegation: Court orders disturbed arrestee (who stole $5 worth of snacks) sent to mental hospital. Instead, he remains at Hampton Roads, Va. prison where guards beat him, turn off the water to his cell, which becomes covered in feces, urine. He dies of severe malnutrition. Fourth Circuit: His estate cannot sue the (former) head of the state's mental hospitals. (The suit is proceeding below against other parties.)
- The U.S., South Korea, and a U.S. arms contractor enter three-way agreement for contractor to upgrade South Korea's fighter jets. Yikes! The price tag for the job comes in at way more than initially touted. South Korea: So the contractor has to pay us an agreed-upon $43 mil punishment for failing to use its best effort to keep things running smoothly. Fourth Circuit: Not so. But we'll not enjoin a parallel suit that's proceeding in Korean court.
- In unmarked cars, Southaven, Miss. officers box in motorist during an attempted marijuana sale. They shoot, kill the driver (but fortunately miss the three-year-old in the car). Allegation: The officers didn't identify themselves; the driver's attempts to maneuver the car away from the officers did not put them in harm's way. Fifth Circuit (2017): The man's estate can sue the officers. Fifth Circuit (2018, same panel, on a petition for rehearing): Never mind.
- Michigan funeral home owner fires employee who intends to transition from male to female. Can the EEOC sue the owner, who believes one's sex is an immutable God-given gift? The Sixth Circuit says yes; firing someone for failing to conform to stereotypical gender norms is illegal discrimination, as is firing them for transitioning genders, and religious convictions to the contrary don't change that here.
- Michigan doctor pleads guilty to fraud. But wait! No one warned him he could lose his citizenship, be deported back to Syria. Can he withdraw his plea? Sixth Circuit: Indeed so. Dissent: The warning rule that the majority relies on is for non-citizens and so not applicable to the doctor, a citizen. Moreover, it's not certain, or even likely, that he'd be stripped of citizenship. And if he were, he might be exiled to Egypt, Sweden, or the United Arab Emirates (where his parents and siblings live), rather than Syria.
- The feds subpoena ownership records from Tennessee Walking Horse association for 218 show horses that show signs of being illegally "sored" (an intensely painful method of eliciting a high-stepping gait). Association: Happily! Here are the records. Also, here's a $300 invoice for our time. Feds: We're not paying that. Association: Then we'll not comply with further subpoenas. Sixth Circuit: You will.
- Chattanooga, Tenn. police say defendant confessed in unrecorded interrogation to stealing gun. There is no other proof, and the defendant denies confessing. On the stand, the prosecutor repeatedly calls the defendant a liar, forces him to characterize the officers' testimony as a lie. He's convicted. Sixth Circuit: The prosecutor's comments were plainly improper but not flagrantly so. Moreover, defense counsel only objected to some of them. No need for a new trial. Dissent: "I would not rest twenty years of imprisonment on a missed objection." (More on improper-but-not-flagrant conduct at Sixth Circuit Blog.)
- Transgender man seeks to change his legal name (from Jane Doe to John Doe) but cannot because Indiana law governing name changes requires proof of U.S. citizenship; he is not a citizen but an asylee. Is the law unconstitutional? No need to reach that, says two-thirds of a Seventh Circuit panel; he didn't assert the proper claims against the appropriate people to be in federal court.
- Allegation: Clinton County, Mo. officers arrest man without warrant or probable cause; they beat him repeatedly without cause; they break his arm, withhold medical attention. Video of one beating captures only his screams for help because the camera is pointed at the ceiling. Eighth Circuit: He can't sue the officers because the operative complaint doesn't include a sentence that "expressly and unambiguously" presses claims against them in their individual capacities. And no suing their supervisors because there is insufficient evidence such beatings are common practice at the jail; the proffered statements from other detainees are inadmissible hearsay. (No mention of the camera in the ruling; comes from oral argument around 12:15.)
- Conway, Ark. officers shoot at knife-wielding, mentally ill stabbing suspect 21 times, render him a paraplegic. Officers: Video (played in slow-mo) shows he lunged at us. Plaintiff: It does not. District court: A jury should decide. Eighth Circuit: Affirmed.
- Twenty-one young plaintiffs sue the feds, including the President, claiming the gov't exposed them to the dangers of climate change in violation of their constitutional right to inherit a "well-stewarded" climate. They ask the court to order the feds to immediately cease "authorizing" the use of fossil fuels and to "swiftly phase out" all domestic carbon dioxide emissions, among other things. District court: The lawsuit will proceed to discovery and then to trial. Feds: That is so outrageously wrong that a (rare and extraordinary) mandamus order terminating the suit is appropriate. Ninth Circuit: The suit can proceed.
- Allegation: Iraq War veteran openly carries holstered handgun while running errands. Englewood, Colo. police approach him with guns drawn, detain him for four hours, prevent him from recording the interaction, cite him on bogus charge (that is later dropped). Tenth Circuit: By detaining him long after it was clear he wasn't threatening anyone, the officers violated the Fourth Amendment. He can't sue, though; the right wasn't clearly established. Also not clearly established: the Second Amendment right to open carry and the First Amendment right to record the police. Case dismissed.
- In unmarked cars, Orlando, Fla. officers box in car whose occupants are suspected of not wearing seatbelts; the driver drives off; the police catch up, ram the car, and shoot the driver dead. Allegation: Contrary to the officers' testimony, the driver wasn't about to run over an officer when he was killed; he couldn't have, as the car's engine had died after police rammed the vehicle. Eleventh Circuit: Qualified immunity. (H/t: Police4aqi.)
- Selma, Ala. officer shoots hatchet-wielding, mentally ill septuagenarian, killing him. Eleventh Circuit: Qualified immunity. Video shows he moved towards officers after refusing numerous orders to drop the hatchet.
- Man seeks to build two houses on San Mateo County, Calif. lot, begins applying for permits in 1999. California Appeals Court: And he must continue applying; in spite of (in the words of the trial court) a "cavalcade of delays and errors," his suit is not yet ripe. (Via Gideon's Trumpet.)
When Jasna Bukvic-Bhayani, a North Carolina makeup artist, announced plans to open a makeup school, the state's Board of Cosmetic Art Examiners paid her a personal visit. The board had interpreted its regulations to mean that it was illegal for Jasna to operate her school—unless she also taught her students 500 hours of additional curriculum on subjects totally unrelated to makeup (like aromatherapy, hair removal, and facials). Moreover, Jasna would have to spend at least $10,000 on unnecessary equipment. After almost a year of trying to convince officials the rules didn't make sense, Jasna sued last August. This week: victory. At court-ordered mediation, the board agreed that Jasna's school need not also teach esthetics; standalone makeup schools are now legal in the state. Read more here.