The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Since 2009, Tennessee officials have levied nearly $100,000 in fines on African-style hair braiders—not for any health or sanitation violations but simply for operating without a license. The license, which takes 300 hours to obtain, creates real hardship for braiders and doesn't much benefit the public, so it's welcome news that a bill to repeal it is advancing in the Legislature. IJ Legislative Analyst Nick Sibilla has the story at Forbes.com.
- Man is convicted in 2004, sentenced to life for pair of Woodbine, N.J. robberies where victims were tied up, threatened. Third Circuit: New trial or set him free; his attorney rendered ineffective counsel by failing to question detectives' handling of "the one piece of tangible evidence" tying the man to the crime (a cigarette butt purportedly found at one of the crime scenes that could actually have come from his home).
- Under South Carolina's "Disturbing Schools Law" and "Disorderly Conduct Law," kids as young as 7 have been arrested for cursing, refusing to follow directions, or getting into minor scuffles. So the kids challenge the law. Fourth Circuit: And their lawsuit should be allowed to go forward.
- On personal blog, prosecutor writes a series of posts on litigious political activist with a criminal past; the activist complains to the prosecutor's superiors; the posts are not altered. A still-unidentified hoax caller then triggers a SWAT raid of the prosecutor's home. District court: The activist cannot sue the prosecutor for seeking to have him investigated for playing a role in the hoax. Fourth Circuit: That's so.
- Allegation: Manassas City, Va. detective (an alleged child molester) compels 17-year-old to masturbate in front of armed officers so as to compare his erect penis with illicit images sent to the teen's 15-year-old girlfriend. District court: Qualified immunity. Fourth Circuit (2017, over a dissent): Reversed. The detective violated the teen's Fourth Amendment right of privacy and should have known it. Fourth Circuit (2018, on dueling petitions for rehearing, also over a dissent): So actually, we vacate rather than reverse the district court on that point. Also, it's possible the detective's actions amounted to creating child porn, for which the 17-year-old can seek recompense (a claim previously dismissed). (We discussed the 2017 ruling on the podcast.)
- In areas zoned for single-family living, Salisbury, Md. forbids more than two unrelated persons from living together. Officials: So landlord renting house to two brothers and a friend is breaking the law. District court: The ordinance is unconstitutionally vague. Fourth Circuit (2016): Is it? District court: It's not. Fourth Circuit (2018): The renters have moved out; case is moot.
- Texas law aimed at curtailing so-called "sanctuary cities" (wherein local officials limit their cooperation with federal immigration authorities) is challenged on a host of constitutional theories; district court enters preliminary injunction. Fifth Circuit: Which we now vacate; the law is constitutional, except for the provision that prohibits elected officials from "endorsing" sanctuary policies, which violates the First Amendment.
- In 2016, the Department of Labor enacted the "Fiduciary Rule," unsettling decades of practice by broadly reinterpreting the term "investment advice fiduciary" to subject hundreds of thousands of financial service providers in the market for ERISA plans and IRAs to stringent regulation. Fifth Circuit (over a dissent): Which they had no authority to do; the Fiduciary Rule is vacated.
- Blount County, Tenn. detective and prosecutor withhold exculpatory evidence in 2002 murder trial, so man's conviction is vacated in 2011. He's acquitted on retrial in 2015. Was the man's deadline to sue for prosecutorial misconduct a year after the vacatur or a year after the acquittal? The latter, says the Sixth Circuit, so his suit should not have been dismissed.
- Lima, Ohio police take sexagenarian drunk driving suspect to ground; one officer knees him repeatedly, fracturing a rib, when he doesn't produce his hands for cuffing (allegedly because they're pinned underneath him). Sixth Circuit: The knees were excessive force, but our precedent puts officers on notice not to beat people (who might be offering slight resistance) only in booking rooms—this was a traffic stop. The man can't sue.
- Former employee of red light camera company that bribed Chicago official (who is now serving 10 years) turns informant, seeks sizable cut of the $20 mil the company paid to settle the city's suit. Seventh Circuit: The chutzpah!
- When a reasonable person orders a 12-oz. iced coffee, do they expect a full 12 oz. of coffee—or some coffee and some ice in a 12-oz. cup? Los Angeles man: The former. Starbucks is defrauding its customers. Ninth Circuit: Not so.
- Suspect, already searched, is unarmed, sitting compliantly on the bumper of a squad car, and being watched over by an armed King County, Wash. officer. Nonetheless, another officer allegedly points a gun at the suspect's head and threatens to kill him. Is that so wrong? It's wrong, says the Ninth Circuit. So wrong? Not so wrong that every reasonable officer would have understood it was unconstitutional. Qualified immunity.
- Civil Procedure Exam Question: California Highway Patrolman punches septuagenarian in the stomach during a traffic stop, and jury returns a special verdict finding excessive force. Officer isn't as quick with his notice of appeal as he is with his fists, waiting 199 days to file. But the court's even slower, waiting 227 days to approve and enter judgment on the special verdict. Is the notice of appeal timely? Professor Ninth Circuit says "No"; judgment was "constructively" entered after 150 days.
- Allegation: After completing his sentence, man spends eight years in Los Angeles County jail awaiting word on whether he's to be deemed too dangerous to release. For more than six of those years, he's housed with criminal convicts, wearing a red jumpsuit that marks him as a sex offender, for which another inmate attacks him with a razor. Ninth Circuit: He can sue the then-sheriff (who is facing prison time for unrelated matters).
- Do the Articles of Confederation give rise to employment discrimination claims? They do not, says the Tenth Circuit.
- Eleventh Circuit: Wearing a mask in public is illegal in Georgia (with exceptions for Halloween, among other things), a measure meant to protect against "terrorization by masked vigilantes." So an allegedly peaceful protester arrested for wearing a Guy Fawkes mask can't sue Atlanta police. Dissent: That's not the law; wearing a mask in public is legal unless the wearer intends to intimidate people; "non-threatening political mask wearing" doesn't meet that standard.
- In a blog post, doctor suggests another doctor's method for treating Alzheimer's and other ailments (by injecting a drug used to treat arthritis along patients' spines) is quackery. Libel? Eleventh Circuit (2017): No, the purported quack's suit is a Strategic Lawsuit Against Public Participation. Eleventh Circuit (2018): And he can pay the blogger's legal bills—$260k.
Long one of the most important and vigorously enforced provisions in the Constitution, the Contract Clause was meant to bar states from retroactively altering contracts, which, apart from the unfairness of it, creates uncertainty in commerce and credit markets because businesses can't know if their agreements will be honored. But the Clause was largely read out of the Constitution in the 20th century, and now state legislators have relatively free rein to rewrite private contracts as they see fit. On Monday, however, the Supreme Court will consider a Contract Clause case for the first time in a generation, presenting the opportunity to revive this crucial property rights safeguard. Click here to read an IJ amicus brief, written on behalf of Vanderbilt prof James W. Ely, urging the Court to embrace the original meaning of the Clause.