The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over at the Cato Institute's Daily Podcast, IJ Senior Attorney Robert McNamara explains why the Supreme Court's recent decision in NIFLA v. Becerra is one of the most important free speech rulings in a generation. Click here to listen.
Or click here to read McNamara and fellow IJ Senior Attorney Paul Sherman on NIFLA in Cato's Supreme Court Review.
- Under decades-old Federal Election Commission regulations, nonprofits that run political ads need disclose the identities only of donors who earmarked their donations for those specific ads. Uh oh! A federal district court holds that this is a plain misreading of the law, which requires all contributors be disclosed. D.C. Circuit: And that is probably right, so we will not grant a stay pending appeal. (NB: Neither will the Supreme Court.)
- Advocacy group for the blind sues the Container Store, alleging that the company's use of touch-screen point-of-sale devices—which are inaccessible to blind customers—violates the Americans with Disabilities Act. Not so fast, says the Container Store: You agreed to arbitrate disputes when you signed up for our loyalty program. First Circuit (with retired Justice Souter sitting by designation): They did no such thing, because the terms of the arbitration agreement were never communicated to them.
- Third time's a charm (but so were the first and second): After twice persuading the Third Circuit to reinstate her complaint alleging that Pennsylvania prison officials suspended her visitation privileges in retaliation for her exercise of First Amendment rights, pro se plaintiff persuades the same court to vacate the entry of summary judgment in the prison officials' favor. But, adds the Third Circuit: Pleeeeeeease get a lawyer on remand.
- Special ed teen pleads guilty to assaulting Brownsville, Tex. corrections officer. Four years into his eight-year prison sentence, video emerges that exonerates him; he's released. Fifth Circuit (en banc): But he can't sue the gov't for hiding exculpatory evidence because he pleaded guilty. The right to receive exculpatory evidence applies only to trials, not to plea-bargaining. By entering a guilty plea, the teen waived the right to a trial and, by extension, the right to receive exculpatory evidence. Judge Ho, concurring: And criminal defendants should be glad that Brady rights are waivable; it gives them the option to trade that right for something better, like less jail time. (Indeed, an unwaivable right is like receiving an elephant as a gift from the King of Siam: if you can't sell the elephant, return it, or trade it, then the pachyderms will "inevitably eat their owners out of house and home.") Judge Costa, dissenting: The trend among our sister courts is to recognize Brady rights pre-trial.
- Fifth Circuit: Officers seeking to conduct a "knock and talk" need to back off if no one answers the door—either to conduct more surveillance, get a warrant, or call it a day. What they can't do is repeatedly bang on the door, call residents on the phone, and peek in windows at 2 a.m. So no qualified immunity for Southlake, Tex. officers who allegedly did that and also body-slammed an unresisting, practically blind mother onto brick steps. (Local news write-up of the incident here.)
- Seeking to raise tax revenue, Upper Arlington, Ohio officials prohibit schools from operating in business district. Religious school challenges the restriction as a violation of the Religious Land Use and Institutionalized Persons Act. Sixth Circuit: Plaintiff isn't similarly situated to any of the groups allowed to operate in the business district, so there is no violation. Dissent: RLUIPA does not contain a "similarly situated" requirement; you (and other courts) are just making that up.
- Nashville city attorney states at oral argument that police forced picketers to leave a public sidewalk near the city's LGBTQ Pride Festival to create a "safe space." Sixth Circuit: But for the content of the picketers' speech, they wouldn't have been removed. That's content-based discrimination; strict scrutiny applies, and Nashville loses. Dissent: The picketers' use of bullhorns means Nashville's action wasn't content-based, and concessions by Nashville's "obviously harried" attorney at oral argument shouldn't count as evidence.
- Tennessee state legislator engages in pattern of inappropriate sexual behavior (see the official report), is expelled from the Legislature, and loses his lifetime health insurance and some pension benefits. District court: He can't sue the state's benefits administrators who cut him off; it was the Legislature that voted to do it. Sixth Circuit: Reversed. He has standing.
- Milwaukee County Jail has zero-tolerance policy forbidding corrections officers from having sexual contact with inmates, trains guards to avoid such contact and quizzes them to demonstrate they understand. Guard rapes inmate multiple times anyway; he's later fired, prosecuted, jailed for three days. Jury awards inmate $6.7 mil. Seventh Circuit: The county need not pay it.
- After six and a half hours of questioning, mentally retarded man confesses that he, along with a cousin, murdered aunt and uncle in their Douglas County, Neb. home. Physical evidence fails to support confession, so crime-scene commander plants blood. Both men charged with murder; charges dismissed months later after Wisconsin teenagers plead guilty to the crime. Eighth Circuit (2012): The men can sue investigators for coercing the confession, fabricating evidence. Nebraska Supreme Court: The (now-former) commander's evidence-tampering conviction is affirmed. Eighth Circuit (2018): The county's insurance company doesn't have to pony up the $6.6 mil the commander has been ordered to pay the men, as his actions were criminal and the policy excludes such things. (Click here for some local longform journalism.)
- Memorabilia collector and museum are all shook up over who owns a guitar that Elvis played on his final tour. Eighth Circuit to collector: Don't be cruel, it's the museum's.
- Man sends out distress call after his boat engine dies. The Coast Guard tows him to Oxnard, Calif. harbor, where eight officers are waiting to detain him on suspicion of being an illegal alien, which it turns out he is. Ninth Circuit (August 2017): Boating while Latino does not give rise to probable cause; terminate the removal proceedings. But wait! The opinion is withdrawn in July 2018 after its author, Judge Pregerson, dies. Ninth Circuit (now with Judge Wardlaw): Actually, we'll let the immigration court figure out if removal proceedings should be terminated. Judge Paez/Pregerson concurring: It is troubling that the gov't encourages noncitizens to apply to relief programs and then uses that info against them in removal proceedings.
- To fight climate change, Oregon imposes a system of carbon-credit trading for fuels. Plaintiffs: Which discriminates against out-of-state fuels and overrides an EPA rule. The Ninth Circuit (over a dissent): Not so. It's permissible environmental protection, and we've upheld a near-identical system in California. This one's fine too.
- Kansas man absconds to Texas with underage girl to (in his words) "stack and lay low." He's caught, convicted of sex trafficking. Man: "Stack and lay low" is a rap lyric that alludes to "frugality, working every day, and living a full life with friends and family." Tenth Circuit: The jury could have reasonably inferred otherwise. (Later in the song, the rapper says, "[T]hey don't question what I say 'cause I'm a ladies['] pimp.") Conviction affirmed.
- Family and friends of prison inmates seek class arbitration against company that allows them to transfer money to inmates, alleging exorbitant fees. But should the question of whether they can arbitrate as a class be decided by the court or by an arbitrator? Eleventh Circuit: The arbitration agreement makes clear that the parties consented to all questions being arbitrated, including the question of arbitrability.
After four years fighting in federal court, IJ this week settled a class action lawsuit against Philadelphia over its abusive civil forfeiture practices. The city has agreed to solid procedural reforms and will set up a $3 million compensation fund so that innocent owners, who were never convicted of a crime, will get every dollar back. For over a decade, Philadelphia turned civil forfeiture into a machine, taking more than 1,200 homes, 3,500 vehicles, and $50 million in cash from residents. Working from a "courtroom" at City Hall, prosecutors controlled a forfeiture process that involved no judge and in which defendants weren't entitled to an attorney, even though their most precious property was often on the line. The consent decrees the city has agreed to will keep future prosecutors from ever again using citizens as ATMs. Click here to read more.