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.
This week, the Wisconsin Supreme Court heard argument on whether there is a rational basis for a law that prohibits joint operation of both a cemetery and a funeral home. Should the state have to point to specific facts showing the law protects the public from harm—or should it just have to show that the law could arguably have been intended to protect the public, irrespective of whether it actually does? The former, argues an IJ amicus brief.
- Asked if he has a gun, man flees D.C. police on foot. Police shoot him in the back, killing him. A broken BB gun is recovered nearby. (The man's fingerprints aren't on it; DNA swabs are taken but apparently not processed.) Jury: It wasn't excessive force. Man's mother: Could be the police planted the BB gun. The trial judge should have delayed the trial and sanctioned the defense for failing to turn over evidence during discovery. D.C. Circuit: No errors here.
- Two physicians, a labor union president, and many others help Long Island Rail Road workers obtain fraudulent disability benefits. It's an "epidemic" of fraud; nearly 80 percent of LIRR workers retire on disability—compared to 20 percent at a comparable railroad. Defendants: The scam was so blatant that regulators must have known what we were doing, and they didn't try to stop us. Second Circuit (2015): Convictions affirmed. Defendants: Okay, but it wasn't such an epidemic after all; most retirees' were indeed disabled and have since had their benefits reinstated. We shouldn't have to pay so much restitution. Second Circuit (2018): The restitution isn't a sufficient deprivation of your liberty to permit collateral review.
- After "Pharma Bro" Martin Shkreli increases the price of a generic AIDS drug by 5,000 percent, Maryland legislators ban "price gouging" of "essential" generic drugs. Drug companies: Which is unconstitutional. The Commerce Clause limits the power of states to control conduct outside their own borders. Fourth Circuit: Just so. Maryland is directly controlling prices charged outside Maryland, so the law must go.
- Executing a warrant to arrest a man suspected of credit card fraud, Biloxi, Miss. police approach man's RV in the dark, draw guns, enter without knocking, and order man to exit RV. Within 30 seconds, the man has been shot and tased while fishing for a cigarette lighter in his pocket. Fifth Circuit: He shouldn't have done that; qualified immunity.
- May Ohio prohibit the state health department from offering federal health funds (unrelated to abortion) to any organization that provides or promotes abortion? No, says the Sixth Circuit, because the law places an unconstitutional condition (agreement with the state's message) on receiving otherwise available funds.
- Were volunteers at a church-owned Cuyahoga Falls, Ohio restaurant "coerced" into working (and therefore entitled to minimum wage) because the church's pastor ominously warned them that failing to do so might be a mortal sin? Sixth Circuit: No! Judge Kethledge, concurring: The gov't's position, that it is entitled to regulate the spiritual dialogue between pastor and congregation, "assumes a power whose use would violate the Free Exercise Clause of the First Amendment."
- Ohio state trooper pulls over African-American motorist because he was driving under the speed limit (less than a mile after exiting a reduced-speed construction zone) and because the wheel of his car touched a lane marking. After a sobriety test and drug-doggie sniff turn up nothing illegal, a search of the car reveals some counterfeit gift cards. Sixth Circuit: Suppress the evidence. "While the law allows pretextual stops based on minor traffic violations, no traffic law prohibits driving while black."
- Responding to a domestic violence call, 320-lb. Lenawee County, Mich. police officer tackles a man on his porch—fracturing his pelvis and breaking multiple ribs. Uh oh! Turns out the police had the wrong address. Sixth Circuit: A jury could find that the officer acted unreasonably and used excessive force. A second officer, who simply watched the events unfold, is entitled to qualified immunity.
- Since 2016, Indiana has banned abortion providers from providing abortions when a woman seeks one because of the fetus's race, gender, or diagnosis of a disability. Seventh Circuit: Unconstitutional. Partial dissent: A separate provision requiring abortion providers to treat fetal remains like human remains should have been upheld.
- Suspected murderer is so drunk/stoned that he literally falls out of his chair during interrogation. While he is in this state, Peoria, Ill. police tell him that, as a young black man, he is unlikely to receive a fair trial; falsely tell him that multiple witnesses saw him do it; and generally pressure him to confess. He's convicted of first-degree murder and sentenced to 65 years, though the conviction is later overturned. Can he sue the cops? Seventh Circuit: Yup.
- After Congress fails to pass legislation to address so-called sanctuary cities, President Trump exercises the power of the pen and the phone to withhold federal funding from municipalities that don't cooperate with federal immigration officials. Seventh Circuit: Congress didn't give the President that power, and he can't take it for himself. Partial concurrence/dissent: That's true, but the district court didn't have the power to enter a nationwide injunction.
- A man identifying himself as psychiatrist Julian Lopez Garcia purports to treat patients for various mental illnesses at a Chicago medical clinic for several months. Plot twist! The good doctor is neither a doctor nor, in fact, Julian Lopez Garcia. (He is instead high-school dropout Scott Redman.) A sophisticated fraud for which, says the Seventh Circuit, he received an appropriately long sentence.
- President Trump ended the contempt prosecution of Maricopa County, Ariz. Sheriff Joe Arpaio by granting a pardon. Arpaio then asked that his conviction be vacated. After the district court refused, Arpaio appealed, and the United States announced that it would not defend the ruling. By a vote of 2–1, the Ninth Circuit holds that a special prosecutor should be appointed to defend the ruling. In dissent, Judge Tallman bemoans "undoubtedly political attacks on Presidential authority."
- Walter Leroy Moody Jr. sent four package bombs, killing an Eleventh Circuit judge and a civil rights attorney. A federal court sentenced him to life in prison, and then a state court sentenced him to die. Moody: You can't execute me yet—or ever—as I haven't yet served my federal life sentence. Eleventh Circuit: Petition denied. The feds get to decide which sentence you serve first, and they are fine with Alabama retaining custody. (Note: He was indeed executed last night.)
- And in en banc news, the Fifth Circuit will not reconsider its holding that Austin, Texas' campaign contribution limits are constitutional. In his first opinion on the bench, Judge Ho dissents: "If we're going to ask taxpayers to devote a substantial percentage of their hard-earned income to fund the innumerable activities of federal, state, and local government, we should at the very least allow citizens to spend a fraction of that amount to speak out about how the government should spend their money."
- Though not spelled out in the Bill of Rights, "Americans have the right to wander, to stroll, and even, if they wish, to loaf about without purpose or object." So says a federal judge in the Southern District of Ohio. (H/t: Brad Heath.)
- Texas' Twelfth Court of Appeals strikes down a "revenge porn" statute, under the First Amendment, because the law unjustifiably restricts the content of speech and prohibits more speech than necessary.
In Minnesota, if you want to sell wine directly to the public from your vineyard, state law requires a majority of your grapes be grown in state—a mandate that benefits only the state's grape industry. For vintners, the law raises costs and limits their ability to expand their businesses. So last year two Minnesota wineries joined with IJ to challenge the law. This month, a federal judge dismissed the case on procedural grounds without deciding whether the law is constitutional. And now the wineries are appealing to the Eighth Circuit to vindicate their rights to free trade in both interstate and foreign commerce. Click here to read more.