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.
New on the podcast: the checkmate doctrine, the right to pre-indictment counsel, and an Uber antitrust action. Featuring special guest William C. Marra of Cooper & Kirk, who wields words like a blade and also literally owns a sword. Click here for iTunes.
- For years, a Texas electric utility company and its union feuded over the installation of automated smart meters; the company wanted them; the union didn't, fearing they would put meter-readers out of work. A repairman for the company testifies to state legislators that the smart meters are combustion prone and damaging homes. Company: Which isn't true. You're fired. NLRB: Can't fire him. His testimony was protected union activity. D.C Circuit: Maybe not. We're very deferential to the Board, but even so, the NLRB's reasoning here is "too opaque."
- Syracuse, N.Y. officials have a policy of cutting off water service to tenants when their landlord fails to pay the water bill. But, says the Second Circuit, there's no rational basis for punishing innocent third parties in the hopes of inducing their derelict landlords to pay.
- A man and a woman work in neighboring Manhattan buildings but had never met until, "as often happens on crowded New York streets, [their] paths crossed." The start of an unlikely romance? No. She steps on his heel as he's crossing in front of her; they altercate. The woman presses charges; the man gets arrested. Yikes! Surveillance video shows that she, contrary to what she told police, was the initial aggressor, kicking, scratching, hitting, and threatening him, and not acting in self-defense. Second Circuit: So she can pay him $15k (including $10k in punitive damages).
- Third Circuit: Consensual sexting between teenagers is a crime of moral turpitude that can get you deported. So petitioner, a 49-year-old caught with child porn, is definitely deportable.
- Sixteen-year-old Elizabeth, N.J. drug gang enforcer ordered 1989 murder, is convicted of racketeering. Third Circuit: His sentence, which is essentially life without parole (he won't be released until he's 72), violates the Eighth Amendment.
- Low-IQ drifter confesses to killing two gay men three days apart in 1980. He's convicted of first murder, acquitted of the second. Decades later, DNA exculpates him of the second murder, but DNA from the first no longer exists. Fifth Circuit: New trial. Evidence of innocence, like a third party's fingerprints at the scene (which was withheld from the defense) and a detective's propensity for beating suspects, is ample. Dissent: A finding that a convict is actually innocent isn't enough to grant him relief; he still has to prove that his rights were violated and that deference to the state court is out of line.
- Man buys 144 grenades (from undercover ATF agent) intended for use in Mexico. Man: Since 143 of them were actually duds, I should have been sentenced as if I only bought one. Fifth Circuit (in the inaugural federal opinion by Judge Willett): Nope. The sentencing court properly considered what the man pursued, not what he procured.
- Allegation: Sixteen-year-old (whose friend shoplifted a jacket) initially flees from Opelousas, La. police, but lays down. An officer slaps him, knees him, cuffs him, and then shoves him against a police car. District court: That's not excessive force. Fifth Circuit: Actually, there's enough evidence of excessive force to let the case move forward.
- After early release from prison, former Colerain Township, Ohio high school teacher seeks to challenge her conviction for sex offense with a student in federal court, as well as requirement that she register as a sex offender for life. Sixth Circuit: Even though the consequences flowing from her conviction are "'grievous collateral consequences,'" they are not severe restraints on her liberty that would allow us to hear her appeal.
- FBI agents shoot suspect dead in his home while executing a warrant (to look for child porn). Agents: He ignored repeated orders to drop a gun, and we only shot when we saw him remove it from a holster. Suspect's wife: The agents (who broke my nose when they kicked in the door) didn't identify themselves, never issued any such orders, and caused the volatile situation that they say justifies the shooting. Sixth Circuit (over a dissent): She can't sue.
- Who steals credit card data? Scoundrels, says Judge Easterbrook of the Seventh Circuit. Moreover, bookstore customers who spent money on credit monitoring services, lost access to their cards briefly, and had to deal with the aggravation of the breach should not have had their class action against the store dismissed.
- In most of Illinois, school boards are elected. In Chicago, the mayor appoints the board. Plaintiffs: Which deprives Chicago residents of their right to vote, disproportionately affecting blacks and Hispanics. Seventh Circuit: Neither a violation of the Equal Protection Clause or the Voting Rights Act.
- Tigers and lemurs! Wolves and cougars! A Manchester, Iowa zoo must relinquish its endangered species to a facility that can properly care for them, says the Eighth Circuit. (After all, the zoo only provided a single bowling ball to entertain the tigers, and the lemur cage only contained one log to climb on.) But the activists who sued the zoo under the Endangered Species Act are not entitled to costs and fees, which they are pursuing in order to force the zoo to close altogether—in order to protect the zoo's non-endangered species, which is not what the Act is meant to do. (Though it seems the feds have forced the zoo to close.)
- Fresno County, Calif. school system pays female math consultant less than male counterparts. Ninth Circuit (2017): The counterparts' salaries at previous jobs were higher than hers, so it's not necessarily unlawful. Ninth Circuit (en banc, authored by the late Judge Reinhardt): Nope. Any consideration of prior pay by employers who use a formula to set salaries (as opposed to individualized negotiations) violates the Equal Pay Act of 1963. Concurrences: Maybe prior pay can be part of the consideration.
- California suspends the driver's license of a taxpayer who makes it onto the list of the state's top 500 delinquent taxpayers—which may not be the tops for the lucky few who make the list, but which the Ninth Circuit says is perfectly constitutional.
- Tenth Circuit: Qualified immunity for Hutchinson, Kan. police who pummeled a disarmed and allegedly unresisting (but not yet restrained) suspect and choked him unconscious. But no qualified immunity for pummeling and choking him out a second time—after he was handcuffed and zip-tied.
- And in en banc news, the Ninth Circuit will not reconsider its denial of qualified immunity to social workers who removed children from their home after their parents took post-bath-time photos of "their cute little butts." Nor will the Eleventh Circuit reconsider its grant of qualified immunity to police who shot a man in the back, killing him, in his home.
Does the First Amendment protect those who wish to privately teach or learn a useful skill? No, says a federal judge for the Eastern District of California. Last year, the Pacific Coast Horseshoeing School (PCHS) had to turn away 26-year-old Esteban Narez because California law prohibits teaching "vocational" skills to most students who lack a high?school diploma—which Esteban never obtained due to a major injury his senior year. The law applies even though PCHS doesn't accept any government loans and Esteban's savings would have covered tuition. Because teaching is speech, the Institute for Justice teamed up with PCHS and Esteban to challenge the law under the First Amendment. IJ will appeal the judge's dismissal up to the Ninth Circuit. Read more about the case here.