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.
This week, IJ filed a merits brief in the U.S. Supreme Court, which will soon consider whether a Tennessee law that requires people to live in the state for two years before they can receive a liquor license—and to live in the state for 10 years before they can renew it—unconstitutionally discriminates against new residents. Learn more here.
- Israeli-Belgian national is advised by Canadian border patrol not to board flight to U.S.; she's on a watch list. She seeks an explanation; the TSA issues order neither confirming nor denying her no-fly status. She sues. D.C. Circuit: Petition denied. She sued 62 days after the TSA issued the order, and the deadline is 60 days.
- Twelve-year-old deaf student quarrels with teacher over takeout food, hits teacher with stick, throws rocks. West Hartford, Conn. police arrive, stand behind the student and verbally instruct him to drop large rock. They rely on teacher standing in front of student to translate into sign language, then twice tase student when he fails to respond. Student: I didn't even know the cops were there! And I certainly didn't process any sign-language instructions. Second Circuit: Qualified immunity. Cop reasonably could have thought that his warnings were being conveyed to the student and that the student was deliberately ignoring them.
- Through NYPD's "no-fault" eviction program, police and prosecutors threaten to evict business owners, residents if somebody—even a total stranger—commits a crime at or near their business or residence. Hundreds of people sign settlement agreements, waiving their constitutional rights (for instance, agreeing to warrantless searches) in order to stay in their apartments and businesses. Second Circuit: A class action challenging the constitutionality of the program should not have been dismissed on Rooker-Feldman grounds. (This is an IJ case. Click here to read more.)
- Class action: "Whole Grain" Cheez-It crackers have more enriched white flour than whole grain in them. False and misleading advertising? Manufacturer: The front of the box says exactly how much whole grain is in them—5 or 8 grams. (Per 29-gram serving.) District court: Case dismissed. Second Circuit: Vacated. "Such a rule would permit Defendant to lead consumers to believe its Cheez?Its were made of whole grain so long as the crackers contained an iota of whole grain, along with 99.999% white flour."
- Filmmaker, a gun control proponent, asks gun rights activists how, without background checks, guns can be kept out of the hands of terrorists and criminals. The film then depicts the activists remaining silent, averting their eyes, and shifting in their seats. But wait! In real life, they actually answered the question. The filmmaker acknowledges the segment is misleading. Fourth Circuit: But it's not defamation under Virginia law.
- Man serving sentence in North Carolina for federal drug crimes is separately convicted of state crimes in Oklahoma. The Oklahoma judge orders that the state sentence run concurrently with the federal sentence, but the federal Bureau of Prisons thinks otherwise, effectively adding five years to the man's sentence. Fourth Circuit (2016): Why don't you rethink that. BOP: Okey dokey, we've thought about it and reach the same conclusion. Fourth Circuit (2018): Think harder.
- And via the rarely heard from Thirteenth Circuit, a genial admonishment to subscribe to our new podcast, Bound By Oath, which you will find congenial.
- After pat-down, Houston police believe contraband is protruding one inch from man's butt cheeks. Do a strip search? No, instead man is taken to hospital for anal cavity search, which yields no contraband. Can the man sue the officers? Maybe the magistrate who authorized the cavity search shouldn't have, says the Fifth Circuit. But the officers had a warrant, so no suing them.
- Sex offender serves his time, remains civilly committed. Sex offender: In squalid conditions and subject to daily random searches, property restrictions, staff harassment. Fifth Circuit: Civilly committed persons are entitled to more considerate treatment than criminally confined persons, but the conditions alleged are constitutional. Some of his other claims can go, though.
- Allegation: Bexar County, Tex. jail officer beat up inmate. Upon release, the now-former inmate sues. District court: Case dismissed. He didn't exhaust the administrative remedies available to him in jail. Fifth Circuit: He's not in jail anymore, so he didn't have to. His suit can proceed.
- Allegation: Prisoner makes sink overflow, so Kentucky jailor beats the hell out of him. "We're the law, dawg. We can do what we want." At jailor's trial, the gov't uses evidence that the jailor beat up another prisoner on a prior occasion. Sixth Circuit: Evidence of prior crimes normally isn't admissible at trial (lest it unfairly sway the jury). The exception the gov't relied on doesn't apply, so conviction vacated.
- Three-time deportee from Mexico enters the country a fourth time, gets caught, pleads guilty to illegal reentry, and moves for release on bail pending sentencing. Is he a flight risk? Yes, says the government, because if you let him out on bail we will deport him, and then how would he show up for his sentencing hearing? District Court: That's too clever by half. Sixth Circuit: Nope, it's just the right amount of clever; nothing in the statute prohibits ICE from deporting people pending trial or sentencing.
- In 2006, Jane Doe pleaded guilty to unlawful sexual conduct with a minor and was classified as a "sexual predator" under Ohio law. In Ohio, that classification is permanent, there is no mechanism for altering it, and it requires designees to comply with all manner of registration rules and housing restrictions. Doe sues, claiming a due process right to periodic hearings at which she can show she is unlikely to commit future sex crimes. Sixth Circuit: No. Whether or not you're currently dangerous, Ohio can regulate you as a sexual predator for life.
- Allegation: Missouri prison officials' Hepatitis C screening and treatment policies deny appropriate care and access to potentially lifesaving antiviral drugs. Eighth Circuit: This can proceed as a class action.
- In November, President Trump ordered that asylum for immigrants crossing the Mexican border would be limited to those coming through ports of entry. Ninth Circuit (in 65 pages, 10 days after the appeal was filed): Not so. Rather, the statute says what it says: Immigrants get to apply "whether or not at a designated port of arrival." So the new order stays on ice. Dissent: The statute says aliens can "apply"; it doesn't say the applications can't all be denied.
- At public meeting, hydrogeologist criticizes Albuquerque, N.M.-based water district for fortifying ditch roads with rock rubble. District employee complains to the state professional engineer board, claiming that hydrogeologist's critique amounted to the unlicensed practice of engineering. Correct, says the board. New Mexico Court of Appeals (2013): Actually, the First Amendment is pretty clear that state agencies can't punish folks for talking at public meetings without a license. Tenth Circuit (2018): Sadly, though, the hydrogeologist is now time-barred from seeking damages over this contretemps. (If all this talk of rogue engineering boards sounds familiar, it should: IJ is suing Oregon's for similar First Amendment violations. For more information on our case, check out Ludacris' Facebook page—belated thanks for the shout-out, Ludacris—or visit our website.)
- Allegation: CNN reports that mortality rate for pediatric open heart surgery at West Palm Beach, Fla. hospital is over three times the national average. But that's not so! CNN included less risky closed heart surgeries in its figure; in fact, there is no statistically significant difference between the hospital's mortality rate and the national average. Nevertheless, the hospital closes its pediatric cardiology program and forces its CEO to resign. The now-former CEO sues CNN for defamation; CNN moves to strike the complaint under Georgia's anti-SLAPP (strategic lawsuit against public participation) statute. Eleventh Circuit: Anti-SLAPP conflicts with federal rules and can't be used here.
- And in state court news, the Supreme Court of Kansas allows the warrantless entry of a home because police said they smelled marijuana—inside a Tupperware container, inside a locked safe, inside a bedroom—when they were at the front door. (Click here for local journalism.)
Pennsylvania law demands that applicants for cosmetology licenses prove they have "good moral character," a requirement that prevents our clients, two women who have criminal convictions from years ago when they were struggling with substance abuse, from moving forward with their lives as productive members of society. It's a requirement that doesn't apply to barbers; one can shave, but not tweeze, hair absent a finding of good moral character. This week, Courtney Haveman and Amanda Spillane filed suit in Pennsylvania state court. Click here for more.