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.
Last year, an Akron, Ohio entrepreneur welcomed a group of homeless people to set up tents in the back lot of his commercial property after the city forced them off public land. The encampment has since evolved into a tight-knit community of 44 people helping one another get back on their feet. But the city is using the zoning code to shut it down, forcing people back to the streets. Read about IJ's latest case in The New York Times.
- A criminal statute asking whether a whole category of activity constitutes "a crime of violence" may be unconstitutionally vague, says the First Circuit, but that does not mean a statute is too vague if it asks whether your specific conduct in a specific case was "a crime of violence"—particularly when your conduct involved firearms, pipe bombs, and a nine-month standoff with federal authorities.
- Does the Due Process Clause entitle a Russian national who's been in immigration detention for over a year to a new bond hearing? (He says he's not dangerous; rather, the criminal charges he faces in Russia are retaliation for his opposition to the gov't.) Maybe in some case, says the Third Circuit, but not in his.
- When Texas officials remove a child from home due to abuse or neglect, the child first enters a temporary custody program where officials try to resolve the problems at home or place the child with a relative or adoptive family. If officials are unable to find a permanent placement, the child enters a different program where the state's attention to the child diminishes drastically; caseworkers have enormous caseloads, short tenures; case file management is haphazard. Fifth Circuit: Much, but not all, of the challenged system violates due process; the district court's injunction must be substantially narrowed. Judge Higginbotham (concurring in part and dissenting in part): Children are "shuttled throughout a system where rape, abuse, psychotropic medication and instability are the norm." The injunction should be entirely upheld.
- Man pleads guilty to various meth-related crimes; does not object to his proposed sentence. Uh oh! The judge's written judgment contains conditions that weren't mentioned at sentencing, including requiring the defendant to surrender himself for deportation after serving his time. Fifth Circuit: You can't spring things like that on people. (Bonus: Footnote 5 features an Amazon review of the Federal Sentencing Guidelines Manual.)
- Man serves 17 years in prison for sexual assault—between 1988 and 2004—before DNA evidence exonerates him. (See his page on the National Registry of Exonerations for more.) He sues in 2006 for false imprisonment, among other things. But when did Texas' two-year statute of limitations start running: in 1988 or in 2004? "Every day behind bars is irreplaceable," says the Fifth Circuit, "with the final day as wrongful as the first." His suit should not have been dismissed.
- Endodontist—a dentist who specializes in root canals—challenges Ohio regulations that prohibit specialists from also offering general dentistry services. After the Sixth Circuit (in 2016) reverses a decision dismissing the case, the dental board rescinds the regulations. Is the case moot? Yup, says the Sixth Circuit (in 2018). We don't think the dental board will go back to its bad behavior. And since the board gave up before you could get a court order against it, no attorney's fees for you! (We discussed the 2016 decision on the podcast.)
- Ohio man assaults dancer, gets kicked out of multiple strip clubs, drives drunk, kills another motorist. The deceased's family sues the final club the man patronized. The club's insurance policy covers negligence but has an exclusion for liquor liability, and the insurer refuses to defend the suit or attend a hearing. Ohio court: The bar was negligent for reasons independent of serving liquor. District court: So the insurer has a duty to defend. Sixth Circuit: That is what you get for not showing up to court. Affirmed.
- Everyone agrees Clare County, Mich. officer violated the Fourth Amendment by lingering, for 90 minutes, in and around the curtilage of man's house to give him a random breathalyzer test. (Such tests are condition of his probation. He eventually blows zeros.) Sixth Circuit: Qualified immunity means "even actions that violate the Constitution do not lead to liability," and our own cases were unclear whether this was allowed at that time. Dissent: Our cases conflicted with Supreme Court precedent at the time, so not unclear at all.
- "Rip-roaring drunk" commercial pilot shows up to work but is arrested by authorities in the midst of his pre-flight preparations. Can he be convicted of "operating" the airplane, even though it never moved? Two-thirds of this Sixth Circuit panel says yes.
- Can Detroit police officers escape liability for shooting three pet dogs by arguing that the dogs were unlicensed and therefore "contraband"? No, says the Sixth Circuit, in a decision that somehow really actually exists.
- Illinois power company worker, known for packing heat, gets into arguments with supervisor. Company searches his car (with consent), finds gun, fires him for violating no-gun policy. Arbitrator: Reinstate him. Illinois law lets people keep guns in cars on private property (unless there's clear signage otherwise), which trumps the company's policy. Seventh Circuit: Yeah, give him his job back. Do you even know how hard it is to overturn an arbitration award?
- Wisconsin law requires bussing private school students, but only one private school per religious denomination per geographic area qualifies. Which violates our rights, says a second Catholic school. Seventh Circuit (over a dissent): It would, but the Wisconsin Supreme Court applied that statute to bussing to secular schools affiliated with one organization as well. So there's no Free Exercise problem; it's bussing for the first Catholic school, the first Montessori school, the first French International school. And the school district didn't entangle itself with religion in figuring out y'all are Catholic. They can believe you when you write "traditional Roman Catholic School" on your website.
- The Ninth Circuit (over a dissent) holds that district courts should more permissively allow discovery when a defendant claims that the government engaged in unconstitutional selective enforcement by subjecting him to a reverse stash house sting (a longstanding scheme in which confidential informants lure suspects into "robbing" a drug stash house that does not exist). Come for the majority's discussion of burdens of proof, stay for the concurring opinion's blistering criticism of the entire "tawdry and disreputable tactic."
- Federal law places a bunch of restrictions on the sale and manufacture of misleadingly named firearm "silencers." Kansas law says that none of those restrictions apply in Kansas. Tenth Circuit: Nice try, Kansas. Reliance on Kansas law might mitigate someone's sentence—as it did here—but it can't change the fact of their guilt. (Also, the National Firearms Act is constitutional).
- PROTIP: When filing petitions in federal court, don't attach marijuana as an exhibit. The Federal Circuit will narc you out to the U.S. Marshals. Moreover, your theory of how this creates federal subject matter jurisdiction to hear your case is "the type of argument that you might figure out while high," says Patently-O.
Louisville, Ky. officials are risking the wrath of a federal judge. Earlier this year, the city rescinded an anticompetitive ban on food trucks operating within 150 feet of restaurants that sell similar food as part of a consent decree to settle a lawsuit brought by mobile food vendors. But this month, new protectionist measures are back on the city council's agenda; the proposed rules would, among other things, require vendors to relocate after 10 minutes in one spot. Which "does nothing to help consumers and the public," says IJ Attorney Arif Panju. "It's intended to destroy the viability of mobile vending in Louisville in order to serve the private, financial interests of politically connected restaurateurs." The Courier-Journal has the story.