The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Friends, federal law gives private natural gas pipeline companies the power of eminent domain to take land—but not the power to take immediate possession of land. Can courts issue injunctions granting immediate possession despite Congress' refusal to delegate that power? IJ argues no in this petition for rehearing filed with the Third Circuit.
- Man acquitted of felony theft by reason of insanity is committed to Augusta, Maine mental hospital where he spends 10 years. He's then moved to a group residential program, but after a year, medical staff decide he needs to be recommitted. Man does not take the news well, whips knife out of his pocket, starts stabbing himself. Police officer shoots him three times without warning. Qualified immunity? First Circuit: Not if a jury agrees with the man's version of events. Go to trial.
- Fifth Circuit (September): A Louisiana law that requires erotic dancers between the ages of 18 and 20 to fully cover their breasts and buttocks is probably unconstitutionally vague. Fifth Circuit (on panel rehearing): Just kidding. Dancers may "want to wear the bare minimum, but the Constitution does not guarantee them that level of specificity." The authorities can continue enforcing the law while the suit proceeds.
- Woman serving time (for drug possession) agrees to testify in trial of man who allegedly raped her 12 years earlier. Officials transfer her to Harris County, Tex. jail to await the trial. Meanwhile, her release date arrives, but prosecutors and jail officials keep her in custody for an additional 53 days. Fifth Circuit: Tough. No liability for anyone.
- Plaintiff wins $1,000 in statutory damages for technical violation of Fair Debt Collection Practices Act. (Debt collector illegally used the words "credit bureau" in its business name.) After plaintiff's lawyers seek $130k in fees, district court awards them the princely sum of $0. Fifth Circuit: Just so. While fees are ordinarily mandatory, "special circumstances" obtain here: The record suggests that the plaintiff colluded with her lawyers to generate this "outrageous" fee-heavy lawsuit in Texas instead of in her home state of Louisiana. We also deplore "the poor draftsmanship that permeates the pleadings," the court notes (before honoring Muphry's law with a cheekily errant hyphen in the next sentence).
- Allegation: Mississippi prisoner needs hip replacement surgery; prison medical administrator refuses to pay for it. Fifth Circuit: No qualified immunity for that. You can't be deliberately indifferent to a prisoner's medical needs. On remand, the district court should seriously consider giving the prisoner a lawyer. Concurrence: But there's also evidence that the surgery didn't happen because of the prisoner himself. The district court should seriously consider that too.
- Was it unconstitutional for Dearborn Heights, Mich. officials to deny a conservative pundit's Freedom of Information Act request for booking photos of a Muslim woman without her headscarf? No, answers the Sixth Circuit, in an opinion not much longer than this summary.
- Allegation: For years, the nation's third-largest cable TV distributor declined to distribute TV networks operated by an African-American-owned company. Moreover, the cable distributor's executives put off meetings, proffered disingenuous explanations for its refusal to do business, and told African-American protesters outside the distributor's HQ "to get off welfare." Ninth Circuit: If discriminatory intent played any role—even as a single factor among several—in the distributor's decision not to carry the networks, then the distributor violated federal law. And while we're here, that federal law does not violate the First Amendment.
- Residents challenge Los Angeles' redistricting of Council District 10, claiming it was impermissibly race-based. Ninth Circuit: Dismissal affirmed. Residents had to show that redistricting decisions were motivated predominantly by race. And, says the court, it's not enough that the official who drafted the initial proposal might have been so motivated. Or that the L.A. Council president said that racial considerations were his "priority." Residents still couldn't show that those considerations predominated over the deliberations as a whole. Nor could the residents depose officials who were involved in the redistricting.
- After anonymous 911 tip about armed man near shopping plaza, Indio, Calif. cop approaches man matching tipster's description. Man flees. Cop pursues, shoots man three times in the back. Ninth Circuit: There's a factual dispute about whether the fleeing man had a gun in his hand during the chase. For esoteric qualified-immunity reasons, the court can't immediately review that issue, so to trial it must go. But, the court adds, the cop's initial interaction with the man (pre-chase) was not clearly unconstitutional; the 911 call prompted enough suspicion for an investigatory stop.
- American mother flees Panama with her infant sons without telling their Panamanian father. A federal court orders them returned. While custody proceedings are pending in Panama, the mother flees with them a second time. District court: In the two and a half years it took the father to locate them, they became so settled that an exception to the Hague Convention on child abduction applies; no need to return the boys. Eleventh Circuit: Return them.
- Can a fax message from a gov't official asserting ownership over land constitute a "physical taking" of the land? No, says two-thirds of a Federal Circuit panel, in an opinion that reproduces a map from 1887 but sadly does not explain why people are still sending faxes. (Via @NY_Condemnation.)
- Feds prosecute doctor for allegedly performing female genital mutilation upon nine children in Livonia, Mich. clinic. But does Congress have the power to enact the law banning the procedure? Eastern District of Michigan: No. Neither the Necessary and Proper Clause nor the Commerce Clause authorizes this law. This is local criminal activity that doesn't involve economic enterprise; it is for the states to regulate, not Congress. (Click here for local news coverage.)
- Woman testifies that the father of her children beat her up, held a knife to baby's throat. She also states that she didn't want to testify, but prosecutors threatened to jail her and put her children in foster care if she didn't. The next day of the trial, she partially recants, says the man didn't hold a knife to the baby. He's convicted. She's indicted, pleads guilty to perjury, sentenced to probation. Georgia appeals court: No need to revisit the man's conviction. (Via @ASFleischman.)