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.
- Obama Admin: Religious employers need not pay for contraception if that violates their beliefs, but they must notify a third party, which will then provide said coverage to employees. Little Sisters of the Poor: The notification requirement violates our beliefs. Trump Admin: Strike the requirement. Pennsylvania: It's unlawful, unconstitutional to strike the requirement. Third Circuit: The district court erred by not allowing the Little Sisters to intervene in Pennsylvania's suit.
- District court: By using the name "Backyard Grill" on its barbecue grills, Walmart infringed trademark of smaller retailer that has long sold "Backyard BBQ" grills. Pay $32.5 mil. Walmart: A bajillion companies allude to the backyard to sell grills. Fourth Circuit: Could be. Cancel the award, but this still needs sorted out at trial.
- Allegation: Attempting to rescue informant who signaled she was in trouble, police charge into wrong Pearl, Miss. house, point guns at an innocent family, including mother with an infant, and rough up father. Fifth Circuit (2017): No qualified immunity for an officer who (contrary to other officers' testimony) denies he attended the briefing prior to the operation. Fifth Circuit (2018): And no qualified immunity for two other officers who, like the first, were supposed to have eyes on the right house.
- Dashcam video shows burglary suspect leading Grapevine, Tex. officer on high-speed chase, pulling over, disregarding numerous commands, walking slowly toward the officer with his hands on his head, telling the officer to kill him. The officer does. Fifth Circuit: Qualified immunity.
- Quinquagenarian attorney applies for 150 legal jobs with no success. He sues a company that rejected him; it advertised a position for an attorney with "no more than 7 years" of relevant experience. Unlawful age discrimination? The case should not have been dismissed, says two-thirds of a Seventh Circuit panel. Dissent: The majority has added words to a law that Congress chose not to include.
- At request of high-ranking military officials, drug and device company processes uranium for the Manhattan Project and during the Cold War. The company dumps radioactive waste in an open, gov't-owned location near the St. Louis airport, other locations. The waste seeps into streams, contaminating residential areas. Heirs of people allegedly exposed to radiation sue the company's successor. Eighth Circuit: No can do. Statute of limitations has expired.
- Owner of defunct, polluted Los Angeles industrial site fails to pay taxes. The property is sold at auction to new owner. Can the state bill the new owner for what it spent cleaning up the property? Maybe so, says the Ninth Circuit. Though the new owner never had a contract or a relationship with the old owner, they had a "contractual relationship," as Congress defined the term, by virtue of the tax sale.
- Photographer leaves camera unattended in Indonesian nature reserve. Great Scott! A crested macaque takes an adorable selfie. The photographer publishes it; PETA sues him for infringing on the monkey's copyright. (He settles, will donate 25 percent of monkey selfie proceeds to the reserve, now struggles to make ends meet.) Ninth Circuit: PETA does not have a special relationship with the monkey; it can't sue. The macaque has Article III but not statutory standing. (But the precedent saying the macaque has standing needs to be overruled.) Case dismissed.
- Allegation: Holding a large knife, drunk Sacramento, Calif. man answers late-night knock at his door expecting angry neighbor with whom he'd been arguing. Yikes! It's police; an officer shoots him. (He survives.) Jury: Excessive force. Pay him $534k. District court: Nope. Qualified immunity. Ninth Circuit: The last time we denied qualified immunity to an officer who shot a suspect who was holding but not brandishing a knife, the Supreme Court reversed; the officer here gets qualified immunity. But plaintiff gets a new trial on his state law claim.
- After jury trial, judge awards $7.5 mil to Carson, Calif. mobile home park owner prevented from imposing "excessive" rent increases. Ninth Circuit: Reversed. Rent control is for the common good. The law allows the owner to earn a "fair" return on his investment. (More on the case from inversecondemnation.com.)
- Two pretrial detainees spend over 30 days in Santa Fe County, N.M. jail before seeing a judge, even though state law requires arraignment within 15 days. Can they sue the sheriff, warden, or county? Nah, it's up to the court to schedule arraignments, says the Tenth Circuit; the court, not the defendants, caused plaintiffs' overdetention. Partial dissent: Defendants had the keys to plaintiffs' cells; rather than hold them unlawfully, they could have, among other things, taken them to court unscheduled or set them free. (But only the claims against the county should go forward (because qualified immunity).)
- District court: Florida officials, who have "unfettered discretion" to restore former felons' voting rights, seem to favor white applicants and those who espouse conservative political views—and also have a habit of letting applications linger for years. This standardless scheme violates the First and Fourteenth Amendments. Eleventh Circuit (over a partial dissent): Not so. The district court's order (to draw up some neutral criteria) is stayed for now. (We discussed the district court's opinion on the podcast.)
- A New Jersey law requiring juveniles convicted of certain sex offenses to register as sex offenders and notify neighbors of their status—for life—is unconstitutional, says the New Jersey Supreme Court. Henceforth, such offenders will have an opportunity to convince a judge that they have been rehabilitated after 15 years. (H/t: Sentencing Law and Policy blog.)
- Via Twitter, high schooler anonymously urges a disabled classmate to kill himself. The tweets are extremely upsetting; the classmate obtains counseling. Minnesota Court of Appeals: Sending numerous tweets to someone knowing it will cause them to "feel frightened, threatened, oppressed, persecuted, or intimidated" is stalking. Convictions affirmed; the First Amendment doesn't protect said speech. (More on the case from the Technology & Marketing Law Blog.)
In Washington, D.C., two day care providers and a parent have teamed up with the Institute for Justice to sue the city and its education agency in federal court over regulations requiring day care providers to obtain college degrees. The new requirements will put hundreds of qualified people out of work, reduce parents' options, and drive up child care costs, which are already the highest in the nation for kids below preschool age. Learn more about the case here.