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 week, IJ argued civil forfeiture at the U.S. Supreme Court. This week, at the Pennsylvania Supreme Court, we argued municipalities shouldn't be able to ticket homeowners for something that's not prohibited—or even mentioned—in the zoning code. And we launched two new cases: a challenge to a Fort Pierce, Fla. law that bans food trucks from operating within 500 feet of a restaurant and a challenge to a Seattle ordinance that requires renters to allow city inspectors into their homes without a warrant. Good times.
- Kaspersky Lab makes antivirus software. It's also based in Russia, and its founder used to work for Russian intelligence. Which is why, in 2017, Congress thought it was maybe a bad idea for the federal government to keep using Kaspersky software. D.C. Circuit: And that is A-OK. This is obviously about national security, not punishing Kaspersky. The law doesn't run afoul of the rarely litigated "bill of attainder" clause of the Constitution, which prohibits Congress from passing laws to punish specific individuals.
- How do federal courts defer to law enforcement? The First Circuit will count the ways: Manchester, N.H., man's 5-to-15-second drive was detectably drunken? His car in a parking lot at midnight was a traffic hazard that needed to be searched and towed? His moving his hand to his hip was "indexing," a subconscious suggestion that there was contraband in the car? Check, check, and check. Conviction affirmed.
- Rensselaer County, N.Y. officer, Officer A, illegally accesses a confidential law enforcement database to stalk his ex-girlfriend's new paramour. Officer B (the ex-girlfriend's brother) reports Officer A's crime, triggering threats and reprisals from A and other gov't officials. Officer B sues for First Amendment retaliation. Second Circuit (over a dissent): It's only illegal retaliation if Officer A's crime was "a matter of public concern," and how could any of the retaliators have known whether it was? So qualified immunity for everyone.
- New Jersey bans firearm magazines that hold more than 10 rounds (except for retired cops). A Second Amendment violation? The Third Circuit says no; nobody needs more than two or three bullets for self-defense (except for retired cops). Dissent: "Intermediate scrutiny requires more concrete and specific proof before the government may restrict any constitutional right, period."
- This week, the Short Circuit team launched a new podcast series, Bound By Oath, on the Fourteenth Amendment. Episode One takes a look at the world before the Fourteenth through the story of John Rock, the first African-American admitted to the Supreme Court bar. Listen to it. Please.
- Newark, N.J. police can detain occupants of car that's illegally idling fewer than 25 feet from a crosswalk in a "high crime" area, says the Third Circuit. But a clever firearm enhancement on top of a firearm possession conviction? That's too clever by half.
- Charleston, W.Va. drug task force agent slaps a GPS tracker on a car without a warrant. Which is a "flagrant constitutional violation," says the Fourth Circuit, suppressing the evidence.
- Honduran man caught illegally re-entering the U.S. from Mexico after 2012 deportation. Feds: His sentence should be enhanced as he was convicted in 2006 of beating his brother-in-law to death with a baseball bat in Missouri. Fifth Circuit (panel): Our precedent requires us to declare that such a crime is not one of violence, so a sentence enhancement is inappropriate. Fifth Circuit (en banc): "It is high time for this court to take a mulligan" on this issue, and we overrule 15 years of precedent.
- Ocean Springs, Miss. officials pass resolution requiring that the state flag (complete with Confederate battle flag in its canton) be flown over the city hall and other government buildings. Nonprofit org and city residents sue under the Fair Housing Act, alleging that the flag illegally deters African-Americans from moving to the city. Can't sue over that, says the Fifth Circuit; exposure to the Mississippi state flag does not amount to an injury.
- The Seventh Circuit says the district court was too hasty in concluding that a challenge to Illinois' wine-shipping restrictions was barred by the 21st Amendment—though the court notes that the plaintiffs will have an uphill battle if a currently pending Supreme Court case doesn't go their way. (That Supreme Court case, Tennessee Wine & Spirits Retailers Association v. Blair, is an IJ case.)
- Illinois woman pleads guilty to charges related to drug manufacturing. A 2-decade-old felony conviction for drug possession in California triggers a recidivist enhancement that would double the five-year mandatory minimum. But wait! Before sentencing, a California state court reclassified the woman's previous conviction to a misdemeanor. So no enhancement, right? Seventh Circuit: Nice try, but reclassifying a crime doesn't change the historical fact that you were previously convicted of a felony. Ten years it is.
- Federal law criminalizes "encouraging or inducing" an alien to come to or remain in the U.S. (so long as the encourager knows of or recklessly disregards the fact that the alien will be doing so illegally). That, says the Ninth Circuit, looks a whole lot like a law criminalizing speech. Tons of speech, including, for example, a grandmother's saying to her undocumented grandson: "I encourage you to stay." The scenario actually before the court is far less sympathetic. (Mail fraud featured prominently.) But even so, the court concludes, the law's overbreadth makes it invalid under the First Amendment.
- Enthusiasts of locomotive-engineer chairs rejoice at the Tenth Circuit's 20-page opinion (complete with a photo) on whether injuries caused by one such chair give rise to strict liability on the part of the train company under the Federal Locomotive Inspection Act, an amendment to the Federal Employers' Liability Act. For the vanishingly few of you who don't want to read the opinion in full, the answer is: thumbs up to strict liability.
- Arrestee arrives at El Paso County, Colo. jail with a broken foot encased in a medical boot. Allegation: The jail's medical provider removed the boot, took away the arrestee's wheelchair and crutches. Forced to hobble, the arrestee suffers new fractures in his foot. Tenth Circuit: His suit can proceed against the medical provider individually (though not against her employer or the county).
- And in en banc news, the Eighth Circuit will reconsider its decision to grant qualified immunity to a Wymore, Neb. officer who body-slammed a 5-foot, 130-pound woman as she walked away from him. (Click here for local news. Click here for an amicus brief urging the court to grant rethink on qualified immunity.)
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