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 The New York Times, IJ Senior Attorneys Robert McNamara and Paul Sherman urge Americans of all stripes to put aside their beliefs about abortion and root for an outcome in NIFLA v. Becerra, which was argued before the Supreme Court this week, that protects free speech.
- In an effort to crack down on robocalls, FCC passes broad regulation of autodialers. How broad? So broad that it treats basically every smartphone like an autodialer. D.C. Circuit: That is not reasonable.
- "Pain, pathos, and personal degradation": Should prosecutors have been permitted to introduce (cringe-inducing) evidence of Maine doctor's incestuous relations with his daughter or was said evidence just meant to prejudice jurors (in tax, health fraud case) against him? First Circuit: Conviction affirmed.
- When confronted with a suicidal armed man locked in an apartment, who would wait for crisis negotiators to show up? Only "a bunch of fucking pussies," says this Nazareth, Penn. officer, who instead knocks and announces, upon which the man immediately shoots himself. Does the dead man's partner have a cause of action under the Americans with Disabilities Act? Third Circuit: Perhaps she does.
- At sentencing, question arises whether "conspiracy to commit murder" qualifies as a "crime of violence." Fourth Circuit: Congress defined the word "conspiracy" so broadly (without any "overt act" requirement) that we reluctantly conclude it does not. Dissent: Plotting to kill a human being is not a crime of violence? Heaven help us.
- Standing on the Mexican side of the U.S.–Mexico border, unarmed 15-year-old is shot and killed by a border patrol agent. Can his family sue the agent for damages? Fifth Circuit (en banc): For the second time, no, they cannot.
- Trial lawyers aren't allowed to strike jury members based solely on race (called a "Batson violation"), and if questioned they have to be ready to provide race-neutral reasons for striking potential jurors. But are courts required to conduct a "comparative juror analysis" and ask why they kept other jurors to whom those same race-neutral reasons apply? Fifth Circuit (en banc): Nope. Dissent: "Today's opinion saps most of the force out of this one tool that has ever resulted in us finding a Batson violation."
- The Sixth Circuit holds that a criminal defendant (cousin to a notorious criminal lawyer) has a right to appeal a decision that he is incompetent to stand trial, even though the most he can hope to achieve is a ruling that forces him to stand trial.
- Dearborn Heights, Mich. pizza delivery man with affinity for watching ISIS videos, purchasing firearms draws attention of sympathetic 19-year-old woman on Twitter. He discusses with her his plans to attack a church. Yikes! She's undercover FBI. He pleads guilty to firearms violations. District court: Five years in prison, which includes an upward variance thanks to the church-attacking plans. Sixth Circuit: That's fine, even though the gov't hasn't charged him for said plans.
- Elkhart, Ind. high school has hosted the "Christmas Spectacular," an annual winter concert, for decades. Parents object. School scrubs New Testament reading, adds Hanukkah and Kwanzaa songs, keeps student-performed Nativity scene. District court: That still violates the Establishment Clause. School goes back to the drawing board; the Spectacular now consists of a variety of songs (religious and non-religious), skits, an 80 percent shorter Nativity scene (ft. mannequins instead of students), and no biblical readings. Seventh Circuit: This version is constitutional. Concurrence: The court "playing the role of producer" in deciding what material can appear in a concert is more government entanglement with religion than the Spectacular is.
- Guinness World Record holder for most consecutive kicks on a "footbag"—aka, a Hacky Sack—sues Guinness and Wendy's fast food restaurants, claiming a cross promotion they ran with his name and record violated trademark law. Seventh Circuit says you can hack, brah, but you can't state a claim.
- Larry Flynt has given exposure to lots of individuals, but the Eighth Circuit won't let him expose the medical qualifications of Missouri's execution team members.
- Are a pro se prisoner's allegations of excessive force "too vague" to support relief when he alleges that two Phoenix police officers "beat the crap out of" him? Ninth Circuit: No.
- Trinity County, Calif. district attorney hires private law firms to pursue civil-enforcement actions on a contingency-fee basis, giving these firms a direct financial incentive to maximize the penalties imposed. Which, says this Ninth Circuit panel, is A-OK.
- Historically, Utah Republican Party selected nominees through a caucus system, but state Legislature passes a law saying candidates must also be allowed to qualify by gathering signatures. Tenth Circuit: Which does not unduly burden the party's right of association, as the legislature was just trying to fix an overly-restrictive nominating procedure. Dissent: Procedure determines substance, and the Legislature cannot be allowed to tinker with the substance of whom a party nominates to office.
- Opa-Locka, Fla. 911 caller reports man trying to get through window of a neighbor's house. Officers respond, see man matching the caller's description, point guns at him, handcuff him, pat him down, reach into his pocket and find a single bullet. Eleventh Circuit: The police were allowed to pat the man down to find a weapon, but they crossed the constitutional line when they reached into his pocket to get the bullet.
Until last night, wide swaths of Louisville, Ky. were off limits to food trucks thanks to a ban on such trucks operating within 150 feet of a restaurant that sold similar food. The rule was so broad that a hot dog vendor could not open up shop near a Mexican restaurant without risking fines or jail time. (They both sell chips.) Restaurants were even known to change their menus to force trucks to move. Well, no more. Yesterday, city officials voted to eliminate the 150-foot rule, which had been the subject of an IJ constitutional challenge. Click here to learn more.