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.
Winston-Salem, N.C. surgeon Gajendra Singh wants to charge patients less than half the going rate for MRIs, but North Carolina's "certificate of need" law prevents him from buying a scanner for his imaging center. Head on over to Vox to read about IJ's newest lawsuit.
New on the podcast: Amtrak's self-serving regulations, the Federal Housing Finance Agency's unconstitutional structure, and Auer deference. With special guest Professor Evan Bernick of Georgetown Law.
- D.C. transit officials reject Catholic Church's proposed advertisement that's to appear on the side of public buses (scroll down for image). Unconstitutional viewpoint discrimination? Probably not, says the D.C. Circuit. Better that officials reject all religious (or antireligious) ads than pick and choose which ones are objectionable.
- Contributing to an op-ed in a foreign newspaper while under a gag order was "skating close to the line," says the D.C. Circuit, but communicating with potential witnesses while on release awaiting trial "went right past the line." Paul Manafort must indeed remain in jail throughout trial (which is rolling on).
- In the course of prosecuting and convicting a financial scammer, federal prosecutors commit such egregious discovery abuses that the Fourth Circuit refers the matter to the DOJ's Office of Professional Responsibility. Scammer files a Freedom of Information Act request to find out the results of the investigation. OPR: We will not even acknowledge the existence of the alleged investigation, let alone give you any documents. D.C. Circuit: This isn't some CIA operation; hand them over (and waive the copying fees).
- In Vermont, candidates for governor and lieutenant governor can opt to take public funding to run their campaigns if they abide by certain restrictions. Among them: They can't raise funds from private donors (namely, political parties), nor can they spend their own money. Plaintiffs: The restrictions violate the First Amendment. Second Circuit: They do not.
- Sixteen-year-old runaway (who's been abused, forced into prostitution by pimp who goes by "Cut Throat") shoots and kills customer, a Nashville, Tenn. real estate agent. She gets a life sentence. Sixth Circuit: Which could be a problem if there's no possibility of parole. But the state's sentencing laws are not clear on that point, so the Tennessee Supreme Court should weigh in. (The case is the subject of a documentary film.)
- Contractor excavates rock to fix portion of Dekalb County, Tenn. highway that slid into river. Mine Safety and Health Administration: That is mining, which you can't do without telling us first. For that and some other things, pay a $2,940 fine. Administrative law judge: Yup. Pay the fine. Sixth Circuit: Maybe not. The Constitution demands ALJs be appointed by the president, a court of law, or a department head—and the ALJ here was appointed by another ALJ.
- Noblesville, Ind. police find defendant, who was displeased with her boyfriend's ex-wife's lawyer, hiding with her son in the lawyer's husband's car and a loaded handgun, binoculars, a plastic bag, latex gloves, a knife, a rubber tourniquet, a syringe that contained a potentially lethal dose of succinylcholine (a paralytic). A search of defendant's car yields ammunition, duct tape, a long blonde wig, two machetes, a tranquilizer gun and darts, alcohol pads, syringes, a "commando" saw, a hammer, a shovel with dirt on it, three license plates, a walking cane, a priest disguise, and a full-headed silicone mask depicting an elderly man's face. Seventh Circuit: No need to reconsider defendant's convictions.
- Can someone who objects to a class action settlement claim a piece of the plaintiffs' attorneys' fees if his objections improved the settlement? He sure can, says the Seventh Circuit.
- Missouri corrections officials must, per state law, permit several members of the public to witness executions. Journalist: Which I have not been allowed to do, perhaps because I've written several articles critical of Missouri's execution practices. The state's current policy, whereby officials have unbridled discretion to choose who can serve as witnesses at executions, violates due process. Eighth Circuit: This suit can proceed.
- Stripped of his ability to prescribe narcotics by the Arkansas State Medical Board, doctor places grenade near then-chairman of the board's vehicle. The explosion seriously injures the then-chairman. By chance, city workers find 98 grenades buried near the doc's home. Police find 76 machine guns in the doc's home. Gov't tries to forfeit the guns. District court denies forfeiture but orders the guns sold at auction because the doctor, now a convicted felon, cannot lawfully possess them. Eighth Circuit: Affirmed. Proceeds from the auction go to the former chairman.
- Facebook meme depicts various firearms and uses for each. Gun control proponent comments in response, "Which one do I need to shoot up a kindergarten?" Screenshot finds its way to Jackson, Mo. police, who arrest and charge the proponent, leading to several days in custody. (All charges dropped.) Qualified immunity for the officers? No, says the Eighth Circuit, because even minimal investigation would have revealed the comment was not a "true threat."
- Allegation: Fully aware of the dangers, San Jose, Calif. police force a crowd of Trump supporters to exit a rally directly through a crowd of anti-Trump protestors. Violence ensues. And the constitutional violation here, says the Ninth Circuit, was so obvious that qualified immunity would be inappropriate.
- District court issues injunction to Maricopa County, Ariz. sheriff's office, under the leadership of Joe Arpaio, to stop racially profiling Latino drivers—which the sheriff's office comprehensively violates while deliberately withholding evidence from the court. So the district court issues another, more comprehensive injunction—which, per the Ninth Circuit, it had every right to do.
- Los Angeles County officers raid home without a warrant after getting tip that wanted man had been seen nearby. He's not there, so officers proceed to a shack in the backyard where they encounter a pregnant woman and her husband. They shoot both of them. Ninth Circuit (2016): Pay $4 mil to the couple. SCOTUS: Vacated. The Ninth Circuit's excessive force jurisprudence is out of step with the Fourth Amendment. Ninth Circuit (2018): The officers are still liable. (Click here for some longform journalism on the shooting.)
- Last year, President Trump issued an executive order withholding federal grant money from "sanctuary jurisdictions" where local officials do not share information about individuals' citizenship or immigration status with the feds. Ninth Circuit: Only Congress can pull the funding. But the district court needs to reconsider whether the nationwide injunction it issued is appropriate. Dissent: While San Francisco and Santa Clara, Calif. officials "may be convinced that the Executive Order loosed a fearsome chimera upon them, that does not mean that the courts should take up arms to vanquish the imagined beast by slaying the Executive Order itself."
- Although the honey badger is well known for not giving a shit about cobras or bees, he is extremely concerned about his intellectual property. Ninth Circuit: A YouTube naturalist's copyright infringement case against a greeting card company should go to a jury.
- Grand Rapids, Mich. police fingerprint and photograph youth who suspiciously handed a model train engine to another boy. Michigan Supreme Court: Though the city does not require officers to fingerprint and photograph people, it certainly approves of the practice. (Each patrol officer is issued a camera and fingerprinting kit.) So the youth's Fourth Amendment claim against the city should not have been dismissed. (H/t: Beth Wilensky.)
- State Department: In 2013, we said posting online instructions to 3D print plastic guns is basically like exporting "munitions," which is illegal. But we have changed our mind and will remove the instructions from our banned "munitions" list. Federal judge: No, you won't. At the request of the state of Washington's attorney general, I'm granting a temporary restraining order requiring the State Department to keep the instructions on the export ban list. (Bonus: "Whether code is covered by free speech is actually pretty settled. The answer is yes," says Harvard cyberlaw fellow. Double bonus: Eugene Volokh on three ways to think about free speech and 3D printing. Super bonus: We talked about the case on the podcast in 2016.)
After municipal forfeiture attorneys were caught on tape calling civil forfeiture a "gold mine," New Mexico became one of the first states in the country to abolish civil forfeiture. Hurrah! But Albuquerque officials went right on forfeiting cars, claiming the law doesn't apply at the municipal level. So IJ sued on behalf of a woman who had her vehicle seized even though she did nothing wrong, simply because her son allegedly broke the law. Flashforward to March 2018: A federal judge agreed the program violates state law. And now the most recent coup: The same judge finds the program unconstitutional to boot, setting a precedent with implications for forfeiture programs nationwide.