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.
The fine folks at ReasonTV have produced a resplendent video on IJ's class action against Coachella and Indio, Calif., which hired a private law firm to prosecute people for minor code infractions (like long grass or broken windows) and then surprised them with bills of $10,000 or more—many months after legal proceedings had concluded. The video features our own Jeffrey Redfern, who, unrelatedly, WON THE BALTIMORE MARATHON a couple weeks ago.
- In June, the Second Circuit vacated a 25-year sentence for a sex offender because the district judge failed to consider his "nightmarish" childhood and overestimated the danger he poses to the community. But wait! In July, the panel withdraws the order. This week, and over a dissent, the Second Circuit affirms the 25-year sentence, which it deems "barbaric without being all that unusual."
- Hundreds of neighbors of North Carolina hog farms file a series of lawsuits claiming that the farms are nuisances. Much publicity and debate ensues, exposing potential jurors to the issues before trial. District court enters a gag order prohibiting all involved from talking publicly about the case. Fourth Circuit: "Gag orders should be a last resort, not a first impulse," and this one violates the First Amendment while harming everyone involved in the case.
- Texas man is civilly committed in 2011 for an indefinite period of time. He absconds from residential facility, is convicted in 2013 of failing to comply with sex offender registration requirements. He seeks federal habeas review of civil commitment order. District court: Ah, but you're not "in custody" under the 2011 order; you're in prison for the 2013 conviction. We can't review the 2011 order. Fifth Circuit: Nope. He's serving both sentences at the same time; back to the district court to address the merits.
- In next week's election, must Ohio elections officials count provisional ballots cast by voters purged from the voter rolls between 2011 and 2015? Indeed they must, says the Sixth Circuit. Judge Siler, dissenting in part: We're too close to the election to grant this kind of request.
- Motorist runs red light, flees from Coshocton County, Ohio police. He bumps a police car into a concrete barrier before being run off the road himself. Video: An officer leaves a place of safety, runs in front of the motorist's truck as he begins to pull forward. The officer shoots at the motorist through the windshield and again through the passenger window as the truck passes. The motorist dies. Sixth Circuit: Qualified immunity.
- Chicago police officer obtains warrant based on sketchy tip from confidential informant, leading to lengthy search of family home that turns up nothing. (Officers now say the informant alerted them to the wrong home.) Can the family sue? Seventh Circuit: Surely not. The informant's tip was detailed enough to provide probable cause; there was no need for the police to independently corroborate it. Besides, even if they lacked probable cause, qualified immunity is a thing. Judge Hamilton, dissenting: The officer and the confidential informant both have "significant credibility problems." The officer may not have knowingly made false statements to obtain the warrant, but that is a factual determination and this is summary judgment. Court should remand for trial.
- Law enforcement officer asks for a woman's help. She invites him in, and they discuss the identity theft ring he's investigating. Gentle reader, it was a ruse! The officer was investigating the woman herself. He videotaped her in her home for an hour to gather evidence of benefits fraud. Which violates the Fourth Amendment, holds the Ninth Circuit. But not clearly enough to do anything about it. Qualified immunity!
- Father of triplets strikes one on the back with a wooden spoon. San Diego County officials take custody of triplets and a fourth sibling. Kids are later returned, but not before county personnel perform intrusive medical exams without getting court or parental sign-off (and without notifying the parents). That's unconstitutional, says Ninth Circuit, violating the rights of parents and children alike. The county is liable.
- Au pairs sue au pair sponsoring company claiming, among many other things, that they were underpaid; company moves to compel arbitration. District court: But these are young, inexperienced foreigners reading English as a second language. Arbitration would be unconscionable. Tenth Circuit: Well, the company doesn't get to pick the arbitration provider. But the agreement was six pages long, and the au pairs got translated versions. They're going to arbitration. [Editor's note: Au pair is French for "arbitration always wins."]
- Officer overhears altercation at Augusta, Ga. cookout, approaches to investigate, allegedly hears shouting that man has gun. Man flees by car; officer pursues; man abandons car but continues to flee on foot. Allegation: Officer intentionally runs into man with his patrol car at 60 mph. (Medical report says more like 20 mph.) No gun found. Excessive force? Eleventh Circuit: Qualified immunity. (More on the ruling from the police4aqi blog.)
- Allegation: Montgomery, Ala. officials arrest people who are too poor to pay fines and court fees, force them to work to pay off their debt (for example, cleaning cells, police cars and court rooms; watching over suicidal inmates). Illegal peonage? False imprisonment? District court: Could be. The claims against the mayor, police chiefs, and two municipal judges can proceed. Eleventh Circuit: Reversed. Plaintiffs' complaint doesn't adequately show how defendants directly furthered the alleged misconduct.
- The state bar of Georgia hires Company A to provide a database of Georgia regulations to bar members. But the state of Georgia hires Company B to provide the regulations to the public. Company A constantly downloads the newest regs from Company B, possibly cutting into B's revenue. Does this dispute belong in federal court? Eleventh Circuit: Sure. Even though Company B doesn't have the regs copyrighted, the case concerns copyright, which is a federal issue. (Bonus holding: There's enough money involved for diversity jurisdiction, too.)
And in en banc news:
- Lawyer defends client by insisting that murder victim was already dead before client shot him. Gov't's expert testifies that victim was probably alive. Lawyer calls no witnesses, accuses expert of "unmitigated gall." Which is some "manifestly ineffective" lawyering, says the Third Circuit (in September); release him or give him a new trial. But wait! The Third Circuit original panel will reconsider en banc.
- Allegation: Man who feels he's being wrongly arrested threatens "to make lawful complaints" about Tangipahoa Parish, La. officers. He's charged with threatening, intimidating the officers. Charges dismissed before trial. Fifth Circuit: A state law that criminalizes threatening public employees—including threats to take lawful actions like calling the media or suing an officer—is unconstitutionally overbroad. Five judges, dissenting from denial of en banc review: The charges were dismissed; he doesn't have standing to challenge the law.
- Nurses allege Corona, Calif. hospital underpaid them, rounding down their time to the nearest quarter hour. Ninth Circuit: This can proceed as a class action. Five judges, dissenting from denial of en banc review: The only evidence in support of the nurses' claim is a declaration from plaintiffs' lawyers' paralegal, which is plainly not admissible. "This doesn't pass the straight-face test."
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