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.
A central tenet of property rights is that owners can exclude others from their property; what's mine is mine, not yours. So, urges an IJ amicus brief, the Supreme Court should review a California court of appeals decision forbidding an owner from excluding the public from his beachfront property (unless he obtains a "development" permit) and requiring him to run an unprofitable business on it.
- Then-Secretary of State allegedly tells parents of Americans who died in Benghazi terrorist attack that amateur filmmaker is to blame, a falsehood. Four years later, the parents sue the Secretary alleging that terrorists accessed her private email server and used its contents to carry out the attack. D.C. Circuit: Can't sue over that yet; need to exhaust administrative remedies first.
- Then-teen supplies gun, sits in passenger seat of getaway car outside robbery-turned-murder at Philadelphia jewelry store in 1990. Jury: Which is first-degree murder. Third Circuit: New trial. Seems likely that, because of bad instructions, the jury incorrectly attributed the shooter's intent to kill to the teen.
- After the arrival of Uber, Philadelphia cab company earnings decrease 30 percent, the value of cab licenses drops 85 percent. Can cab companies sue Uber for attempting to monopolize the industry? That would be no fare, says the Third Circuit; the companies "have no right to exclude competitors from the taxicab market."
- In 2004, upturned anchor embedded in Delaware River riverbed punctures single-hulled oil tanker, spilling 264,000 gallons of crude, a mere 900 feet from its destination after a 1,900-mile journey. (Single-hulled tankers are now banned from WOTUS.) Cleanup is successful, costs $143 million. Who pays? The shipping company and the gov't can recover much of their cleanup costs from the oil company, says the Third Circuit.
- Maryland transit cop suspects he's found a stolen vehicle; he alerts the vehicle's owner, who gets a ride to the scene. Uh oh! The officer inquires whether the men in the car are in the country legally. They aren't. Suppress the ride giver's confession? No need, says the Fourth Circuit.
- Lower court slaps attorney with $175k in sanctions, refers issue for possible disbarment for "habitual, bad faith misconduct." Wowza! Among other things, the attorney filed police report accusing opposing counsel of stalking and making terroristic threats, submitted over 100 court documents with ad hominem attacks (and often false statements) on opposing counsel, filed slander suit against opposing counsel's legal assistant, fabricated out of whole cloth an email to be used as evidence and lied to the court about doing so. Fifth Circuit: Affirmed.
- Sexagenarian dies of West Nile encephalitis after bite from infected mosquito. Did he die an accidental death (for which his family gets an insurance payout) or of a disease (no payout)? Fifth Circuit: A jury could conclude the bite was an unforeseen accident and that his age, morbid obesity, diabetes, and hypertension did not contribute to his death. Case should not have been dismissed. Dissent: West Nile encephalitis is a disease.
- At 2006 traffic stop, St. Tammany Parish, La. officers allegedly beat handcuffed suspect unconscious; he needs several facial reconstruction surgeries. His federal excessive force suit is stayed while he's tried in state court for felony aggravated flight. After a quick deliberation, he's acquitted in 2012, but prosecutors pursue additional charges based on the same 2006 incident. He declines to turn himself in, has been in the wind since 2013. Fifth Circuit: No need to enjoin the state's continued effort to try him.
- Texas home health company seeks hearing to dispute accusation that it has overbilled Medicare. Gov't: Neat! But the backlog for a hearing is up to five years. In the meantime, pay $7.6 million. Company: That will force us into bankruptcy. Fifth Circuit: Which is a due process violation.
- Allegation: Pretrial detainee's foot gets infected, stinks foully, turns black; he can't walk. Rapides Parish, La. jail staff decline to provide care. Ultimately, his toe must be amputated; his kidneys fail in hospital; he needs dialysis. District court: The jail's paramedics were practicing outside the scope of their training without physician supervision; the detainee can sue the sheriff for that. Fifth Circuit: Nope. Qualified immunity.
- Distressed to see that a case has languished for nine years, Fifth Circuit attempts to goose district court judge into action. Judge responds that case will be resolved "soon." Fifth Circuit: Not good enough—MANDAMUS!
- Allegation: Woman arrested at family BBQ sets seatbelt on fire, burns herself in attempt to escape squad car. Wayne County, Mich. jail staff do not abide by hospital's wound care instructions or provide her psychiatric medication. She ultimately needs a skin graft. Sixth Circuit: She can sue several staff.
- Michigan state police sergeant alleges coworker sexually assaulted, harassed her; investigations result in no action. Boss demotes her, transfers her far from home and family. Illegal retaliation? Sixth Circuit (2014): District court shouldn't have excluded evidence of the demotion, among other things. Sixth Circuit (2016): No need to revisit $350k award in her favor. (Also, counsel should be careful not to make a series of misstatements to the court, particularly if all cut in favor of one's client.)
- Allegation: Media, interested citizens convene impromptu press conference outside courtroom at criminal trial of former Hamilton County, Ohio judge. Police demand that two individuals, both African-American, stop filming and search their recording devices. They're handcuffed, arrested, and bogus charges are filed against them. One loses her job because of the incident. Police do not interfere with the other press conferees, who are white. Sixth Circuit: No qualified immunity.
- Prior to indictment, Memphis robbery suspect is offered plea deal. Yikes! It expires, and he ultimately gets a sentence 10 years longer than what had been on offer. He says his attorney failed to relay the plea offer, thereby violating his Sixth Amendment right to effective counsel. Sixth Circuit (sitting en banc): There is no such right prior to indictment. Concurrence (dubitante): The Founders would disagree; the Supreme Court should reconsider its precedent here.
- Police called to home of suicidal Ankeny, Iowa woman say she waved gun around, gave them thousand-yard stare. They shoot her dead. Excessive force? Eighth Circuit: Qualified immunity.
- Police called to home of schizophrenic Jasper County, Mo. man place him in "modified bent arm lock" after he does not submit to cuffing. The man moves suddenly, snapping his own arm. He continues to resist, however, so police use nunchucks to pry, restrain his other arm and tase him repeatedly. Excessive force? Eighth Circuit: Qualified immunity.
- DEA agents interview pilot in the pay of a pair of Paraguayans. No drugs found; he's not arrested. But wait! His plane's auxiliary fuel system (powered by cigarette lighter and secured to plane's wing by duct tape) is not FAA compliant. Eleventh Circuit: Which is illegal. (He gets a year's probation and a $100 fine.)
- And in en banc news, the Fifth Circuit (over six dissents) will not reconsider its ruling that a pretrial detainee held (on bogus charges) for 96 days before seeing a judge can sue Choctaw County, Miss. sheriff. (We discussed the case on the podcast.)
Friends, Little Pink House, a major motion picture that tells the story of IJ client Susette Kelo's Supreme Court showdown over the abuse of eminent domain, will be screened in select theaters across the nation starting April 20. The film stars two-time Academy Award nominee Catherine Keener and Emmy nominee Jeanne Tripplehorn—and also features an original song by rock legend David Crosby. Click here to watch the trailer and here for locations and show times. Not playing near you? Setting up a local screening is easy! Click here for more info.