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: Special guest Arthur Spitzer of the ACLU of D.C. joins the panel to talk about an American detained in Iraq, jury trials for petty crimes, and banning display of the First and Second Amendments. Click here for iTunes.
- In 1958, New York banned "gravity knives," which were used by German paratroopers in WWII and are now quite rare. But NYC officials interpret the ban to apply to any knife that can be opened with a flick of the wrist, so tens of thousands of people (many, or perhaps most, of them minorities) have been arrested in recent years for carrying common folding knives, often for work. Second Circuit: The law isn't unconstitutionally vague. The possibility that the law is being selectively enforced is concerning, though; the other branches "may wish to give further attention" to the ban. (Gov. Cuomo vetoed reform in 2016 and 2017.) (We discussed an earlier ruling in the case on the podcast.)
- Woman gets 163 messages over the course of a year from her cell phone provider, Time Warner, notifying her she has an overdue balance. Yikes! She's not in arrears; the calls are meant for some other customer. She explains the issue, but the calls continue. Did Time Warner violate the Telephone Consumer Protection Act? The Second Circuit says no; Time Warner isn't an autodialer as the statute defines it. The TCPA doesn't apply.
- Man buys cell phone with reassigned number, receives a text message every time the prior owner of the number gets an email—27,800 of them over 17 months. He is unable to resolve the issue with Yahoo (which provided the text service the prior owner signed up for), so he sues. Did Yahoo violate the Telephone Consumer Protection Act? That sounds super annoying, says the Third Circuit, but Yahoo isn't an autodialer as the statute defines it; the law doesn't apply.
- Illegal immigrant dinged for pot possession in 2002 in Wake County, N.C. gets no jail time or fines but must pay $100 court fees. Fast forward to 2015, and the feds move to deport him. Does the 2002 incident count as a "conviction" under the relevant statute, thus preventing him from applying to not be deported? No sir, says the Fourth Circuit; to count as a conviction, the statute says there must have been "some form of punishment, penalty, or restraint on the alien's liberty," and court fees don't count. He can ask not to be deported.
- Allegation: Assistant principal at Houston middle school orders strip search of 22 girls after $50 goes missing from choir class. (The search turns up nothing). School district: Which was unconstitutional, but you can't sue the school district. District court: That's so. The district's failure to provide Fourth Amendment training to staff doesn't amount to deliberate indifference, and even if it did, you can't show such training would have prevented the searches in question. Fifth Circuit: Plaintiffs may be able to show both those things. The case should not have been dismissed.
- In 2012, New Orleans officials detect code violations at city-owned property. Yikes! They commence enforcement action against a former owner (from whom they'd seized the house in 1998 over unpaid taxes). In 2015, officials sell the house to couple without mentioning the still-ongoing code enforcement proceedings. By happenstance, the couple catches wind, persuade officials to cancel the lien against the house. Yikes! Without warning, the city demolishes the house. The couple complains; officials send them an $11k bill for the demo. Fifth Circuit: Could be the couple have some colorable Fourth, Fifth, and Fourteenth Amendment claims.
- Informant buys drugs at Grand Rapids, Mich. house from man with history of drug convictions. Police stop another man seen near the house; he has drugs. Several unnamed sources tell police they bought drugs at the house. A search of the home turns up contraband. An open-and-shut case? Not so, says two-thirds of a Sixth Circuit panel. Officers waited eight months after the controlled buy to apply for a search warrant; the application says the other man was seen in the area, not in the house, and the application doesn't give any indication as to the reliability of the unnamed sources. Suppress the evidence.
- Drug addict is accused of pushing sexagenarian out of parked car, stealing the car in 2006. She dies of head injury. He asks for a lawyer; Shelby Charter Township, Mich. police interrogate him without one. At trial, prosecutors repeatedly characterize his failure to deny the crime during the interrogation as inculpatory. (He's convicted, sentenced to life without parole.) Michigan courts: Everything is on the up-and-up. Sixth Circuit: The Fifth Amendment protects against uncounseled interrogations after right to counsel is invoked, the Fourteenth Amendment means silence isn't inculpatory, and the Sixth Amendment guarantees him a lawyer who would have brought that up at trial. These errors likely influenced the jury. New trial or release him.
- Judge McKeague of the Sixth Circuit cites Mark Twain's quip that "there are three kinds of falsehood: lies, damnable lies, and statistics," in reinstating guilty verdicts of an Ashland, Ky. cardiologist for health care fraud and making false statements to health care benefit programs. The doc led the nation in billing Medicare for angiograms and apparently performed quite a few unnecessary procedures.
- Seventh Circuit: The district court should probably appoint counsel to a mentally ill prisoner who alleges Green Bay, Wisc. corrections officers deliberately disregarded his serious risk of suicide. Concurrence: We're getting a little too close to declaring "a presumptive right to counsel in some categories of civil cases."
- In 2014, Montana man kills grizzly bear without a permit. (The authorities are none the wiser until months later when his ex-wife's boyfriend rats him out.) The authorities: Which is a federal crime. Ninth Circuit: But it's a petty crime (punishable by up to six months and a $25k fine), so the Sixth Amendment right to a jury trial doesn't apply. Still, his conviction is vacated because the trial judge ignored his subjective belief that he was acting in self-defense.
- Woman is arrested on state charges in 2014 relating to murder. Shortly after, the feds indict her on a separate charge—but don't tell her. She pleads guilty to state charge, gets sentenced in 2016. Nine months pass, and the feds finally unveil the 2014 indictment. (She's duly tried and convicted.) A speedy trial violation? The Tenth Circuit says no. While the feds don't have a good excuse for the nine-month delay, she failed to show how it hurt her at trial, and, since she was serving her state sentence, it's not as though she were in prolonged pretrial custody.
- Haitian man is convicted in U.S. court for taking American citizen hostage in Haiti. Man: I didn't know she was an American, I didn't have fair notice I could be dragooned to the U.S., and Congress doesn't have the authority to outlaw (this) crime beyond U.S. borders. Eleventh Circuit: Nope. The U.S. and Haiti are parties to an international treaty on hostage taking that puts everyone on notice and gives Congress all the authority it needs. And you needn't know the victim is American for the law to kick in.
- Did a pair of Florida counties violate federal overtime pay requirements by requiring sheriffs' deputies to arrive at work in their uniforms and failing to pay them for time spent donning and doffing said uniforms and policing accoutrements? The Eleventh Circuit says no.
- Low-IQ high school dropout posts ISIS videos on Facebook. Surprise! An FBI informant contacts him, befriends him, videorecords him dressing up as an ISIS recruiter, and persuades him to buy a (fake) bomb to detonate on Key West, Fla. beach. Eleventh Circuit: No reason to reconsider his sentence of life without parole. (Please enjoy some longform journalism on the case.)
- Mesquite, Tex. officers arrest 110-lb. teen tripping on LSD. Officers tell him to calm down, but the teen repeatedly screams, thrashes, and bashes his head against the police cruiser. Officers tase him multiple times. One says, "motherfucker, I'm going to kill you." (Audio here.) The teen dies of head injuries. District court: Can't sue the officers for depriving him of medical help. But a jury might find one officer, who tased the teen in the genitals, used excessive force. (Click here for some longform journalism on the teen's parents' years long effort to get the video that made this case possible.)
- Man charged with misdemeanor (touching a minor over her jeans) is denied a jury trial; the offense is considered petty, and the Sixth Amendment right to a jury trial applies only to "serious" crimes punishable by more than six months. He's convicted. Man: I'm an immigrant. I will almost certainly be deported. D.C. Court of Appeals: Which is a serious consequence. He gets a jury trial. Dissent: So now noncitizens can have jury trials for petty offenses, but citizens can't. Concurrence: D.C. officials could remedy that by restoring citizens' right to such trials (which was stripped by legislation in 1994).
- Wisconsin judges shall defer to state agencies' interpretations of state law no longer, says the Wisconsin Supreme Court. The Chevron doctrine, which the state borrowed from federal law and which mandated such deference, violates the state Constitution.
- California requires some semiautomatic handguns (generally models introduced after 2010) to be stamped with microscopic identifying information. Also, the guns must be equipped to microstamp bullet cartridges when the gun is fired. Plaintiffs: That technology doesn't exist; complying is impossible. California Supreme Court: California law "never requires impossibilities," but the microstamping requirement isn't invalid.
Georgia legislators recently approved a law requiring lactation consultants, who provide breastfeeding advice and support to new mothers, to obtain a license requiring years of college coursework and supervised clinical training. A salutary measure to protect public health and safety? Not at all! The law will serve only to enrich one group of consultants (who lobbied for it and who mostly already meet its requirements) at the expense another group of consultants. There is no evidence the second group provides anything other than excellent care, and indeed a state agency concluded in 2013 that licensing will not benefit the public. The law will create an instant shortage of consultants, particularly in rural, low-income, and minority communities. This week, IJ joined forces with Mary Jackson—who has trained doctors and nurses about lactation but may soon be out of a job—to challenge the law. Faced with a an injunction motion, the state has agreed to a stay of enforcement until the trial court can decide the case. Read more here.