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.
- Are we finally going to get some unlawful quartering law? Nope, the "Third Amendment" in this case refers to the agreement forcing Fannie Mae and Freddie Mac to give all of their profits to the feds in exchange for keeping them solvent during the 2008 financial crisis. Fannie and Freddie investors: Really seems like we shouldn't still be surrendering all of our dividends. Well, it's legal, says the Third Circuit.
- Winchester, Va. police believe man is sexually abusing minors; they get a warrant and arrest him. Then they get another warrant to search his cell phone; the search turns up damning evidence. But wait! The application to search the phone didn't link the phone to the abuse, so maybe there wasn't probable cause to search the phone? Fourth Circuit: The detective knew more than he put in the warrant application, so he reasonably believed there was probable cause (even if there wasn't and the warrant itself was unconstitutional). No need to suppress the evidence that led to a 30-year sentence for producing child porn.
- Woman sells a little over a gram of heroin to a confidential informant, pleads guilty to distribution. She's deemed a career offender and sentenced to 14 years in the slammer. Too much? Nah, that's fine, says the Sixth Circuit. Judge Stranch, concurring: If she hadn't been deemed a career offender, she would have been sentenced to less than two years. And she's a nonviolent offender with a wealth of mitigation material. This is pretty troubling, but I reluctantly agree our precedent requires the result.
- Two fraudsters are ordered, via civil suit (brought by the gov't), to disgorge their ill-gotten gains. They are also, via criminal prosecution (brought by the gov't), sentenced to additional time for stealing lots of money. Double jeopardy? The Sixth Circuit is the sixth circuit to say no.
- Illinois court clerk's office releases filings only after they've been processed, not immediately upon receipt. Courthouse News Service challenges policy as a First Amendment violation. Seventh Circuit: Um … that's the way we do it, too. In any event, federal courts don't need to be telling state courts how to manage their paperwork, so we abstain (and create a circuit split with the Ninth Circuit).
- Allegation: Prisoner at Galesburg, Ill. correctional facility with a history of filing grievances is warned that if he keeps it up, guards will retaliate against him. Prisoner files a grievance about the threat of retaliation … leading to the promised retaliation (in the form of a beating and an extended stay in restricted confinement). Seventh Circuit: There's enough in these allegations for this to go to a jury; the trial court was wrong to dismiss the case.
- When a court provides the name of one of the parties' lawyers in the first paragraph of its opinion, you know that poor soul is in for a benchslap. So it is with this Seventh Circuit opinion, affirming sanctions against an attorney who argued that his client—an alleged copyright infringer—was entitled to attorney's fees as a prevailing party despite having paid $7,000 to settle the lawsuit against it. (Counsel for the copyright owner also gets mildly chastised in footnote 2 but fortunately is allowed to remain anonymous.)
- Drunk driver is taken to jail after car accident. He can't follow simple instructions, answer basic questions, or even stand without assistance. One officer has never seen anyone in such bad shape. But rather than get medical help, Hot Spring County, Ark. booking officer just locks him up. Driver dies that night of heart failure. Eighth Circuit: No qualified immunity for that. A jury could find that the booking officer was deliberately indifferent. (But her supervisor is off the hook. No jurisdiction to decide about the county.)
- After man's wife dies, Kingman, Kan. authorities "secure" his home for hours as a crime scene despite having no reason to suspect a crime has been committed, even forcing the man to urinate outside. May authorities then lawfully search the home after the man allows an officer to go in to retrieve his medication? Tenth Circuit: No (and, come on, let the guy use the bathroom).
- The Northern District of Texas holds that a Dallas officer who shot the plaintiff isn't automatically liable for excessive force just because the officer pleaded guilty to the state-law crime of recklessly discharging a firearm in connection with the same incident. (Click here for local news coverage and dashcam footage.) (Via Police4aqi blog.)
- Officers who "essentially laid siege" to a Fort Myers, Fla. apartment in the guise of a "knock-and-talk" interaction come in for some criticism (and suppression of evidence) in the Middle District of Florida. (Via Brad Heath.)
- And in en banc news, the Ninth Circuit (over a dissent) will not revisit its 2016 decision rejecting a class action of indigent minor immigrants seeking gov't-appointed counsel (they must first traverse the administrative process). The Ninth Circuit will, however, reexamine its decision granting qualified immunity to an officer who shot a fleeing suspect in the back. Meanwhile, the Fifth Circuit will reconsider its ruling that the structure of the Federal Housing Finance Authority is unconstitutional (but that the agency is still entitled to all of Fannie Mae's and Freddie Mac's profits). (We discussed the FHFA's structure on the podcast.)
Occupational licensing laws don't just burden aspiring workers. They also impose real costs on the wider economy—nearly 2 million jobs and billions of dollars lost at the national level each year. This according to a spanking new Institute for Justice report titled At What Cost? State and National Estimates of the Economic Costs of Occupational Licensing. The product of a partnership between IJ, Dr. Morris Kleiner, the nation's foremost expert on licensing, and economist Dr. Evgeny Vorotnikov, the report takes advantage of a uniquely large dataset to offer the first state-level estimates of licensing's economic costs for a majority of states, as well as new national estimates. It also confirms earlier research demonstrating licensing's considerable growth since the 1950s. Read the report and watch a video about licensing's costs here.