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.
Friends, back in 2016, the Oregon engineering board fined Mats Järlström, who has a degree in electrical engineering, for calling himself an engineer. The board maintained that only licensed, board-certified engineers could call themselves "engineers" and that all the many software engineers, sound engineers, train engineers, and other folks who use the term to describe their occupation were breaking the law. Last month, a federal judge ruled that the government cannot redefine the meaning of common terms. Read more at Vice or check out Scott Adams' take on what all this means for popular cartoon engineer Dilbert.
- Drug cartel hit squad attacks ICE agents traveling through central Mexico, an attempt to steal the agents' armored car. One agent is killed; one is seriously wounded. Mexican officials arrest members of the hit squad, including defendant (who didn't participate in attack on ICE agents). He pleads guilty in U.S. to RICO violation, among other things. District court: He gets 12 years in prison. D.C. Circuit: Could be that, in calculating his sentence, the district court considered defendant's murder of a rival cartel member (in Mexico) as relevant conduct, which it shouldn't have. Remanded for resentencing.
- In 2017, President Trump tweeted that transgender individuals would no longer be allowed to serve in the military. (The gov't now says some can; plaintiffs say there is still a total ban.) Four district courts issued nationwide preliminary injunctions barring the military from enforcing the policy while lawsuits challenging it proceed. D.C. Circuit: One of those injunctions is now dissolved; courts should defer to military officials' "considered professional judgment."
- Pretrial detainee at Philadelphia federal prison delivers notes between two members of drug gang (that had murdered six family members of witness against the gang). But first the detainee gives the notes to prison officials, who photocopy them. Yikes! Officials goof up; the detainee delivers a photocopy, rather than the original note, tipping off the gang. The detainee receives threats, makes officials aware of them. Nevertheless, he's placed in yard with the gang members, who beat him severely. Third Circuit: No qualified immunity for prison officials who allegedly failed to protect the detainee. But he can't sue over repeatedly being put in solitary confinement.
- Blind websurfer sues Department of Labor's Federal Credit Union. Allegation: Credit union's website violates the Americans with Disabilities Act because it's not adapted to screenreading devices that blind people can use to navigate websites. Fourth Circuit: Regardless, this particular blind websurfer lacks standing. The credit union's services, described on its website, are available only to employees or former employees of the Department of Labor or their families. The plaintiff fits none of those criteria, so his inability to navigate the website is too abstract a harm.
- Illinois officials sue Chicago officials over police department's use-of-force policies and practices. The parties start to negotiate a consent decree, which the local chapter of the Fraternal Order of Police condemns: It's a "potential catastrophe" that could threaten the chapter's collective bargaining agreement. Over the next year, state representatives meet with the chapter, assure it the decree won't conflict with the CBA. Surprise! That might not be true. Can the chapter now become a party to the lawsuit? Seventh Circuit: Nope. Shouldn't have waited so long to try to intervene.
- Seventh Circuit (2017): When the state takes custody of seemingly abandoned bank accounts, the rightful owner can get their funds back, plus interest, less reasonable custodial fees. On remand, the district court says interest is available to only those property owners whose funds were earning interest when the state took them into custody. Seventh Circuit (2019): Again: A property owner is entitled to income that their property earns, which doesn't depend on what it was earning in the owner's hands before the state took custody.
- In 2004, an FBI agent accidentally puts a Malaysian grad student on the No Fly List. (In the agent's defense, the form is not intuitive). After a decade of litigation, the gov't concedes it knew all along the student was never a threat to national security. Nevertheless, she remains barred from the country. Ninth Circuit (en banc): The gov't's conduct has been "ethically questionable." And the student's attorneys are probably entitled to more than the $450k the district court ordered the gov't to pay. Complete victory on one of the student's claims (procedural due process) doesn't preclude fees for other claims her attorneys raised (First Amendment and equal protection) that the district court didn't reach.
- Upon receiving an anonymous tip alleging child abuse, social worker visits Colorado Springs, Colo. preschool, buttonholes 4-year-old girl, strips her, and (over child's objection) photographs her body—then falsely denies doing so when later confronted by the child's mom. An unconstitutional search under the Fourth Amendment? Maybe, says the Tenth Circuit. Or maybe not. Don't know, don't care. Qualified immunity. Dissent: The social worker "was never aware of facts that could have justified such an intrusive search of a four-year-old girl."
- In 1970s, radical African-American activists squat in Philadelphia home; they pace around the roof with firearms and hold forth with loudspeaker, which annoys the neighbors. In 1978, during massive police operation to evict the group, an officer is shot in the back of the neck. (There is speculation the officer was hit by friendly fire.) Nine activists are convicted in his death. Two die in prison; two have been released on parole; and two more are suing over being denied parole. Eastern District of Pennsylvania: The parole board needs to turn over victim impact statements to the activists; the statements could shed light on whether the board's reasons for denying parole were arbitrary or pretextual.
- According to sources, Russian agents placed polarizing ads on Facebook targeted at Baltimore residents in advance of the 2016 election. In response, Maryland legislators pass new campaign finance law requiring online platforms to post searchable index of data on purchasers, prices of political ads on their websites. Maryland District Court: No way the law survives strict scrutiny. Among other things, it applies to much smaller platforms than Facebook, and it won't remedy the harm it's meant to address.
- In effort to crack down on short-term home rentals, NYC officials pass ordinance requiring Airbnb and HomeAway to turn over "breathtaking" amount of data to the authorities each month, including rental hosts' names, addresses, pricing, and advertisements—irrespective of whether there is cause to suspect a host is violating relevant health and safety laws. Southern District of New York: Could be the law violates the Fourth Amendment. No enforcing it while the suit proceeds. (More via SDNY Blog.)
- Virginia's policy of suspending drivers' licenses for unpaid fines and fees—a policy that has resulted in hundreds of thousands of such suspensions—likely does not comport with due process, says the Western District of Virginia, as it appears drivers get insufficient notice of and opportunity to challenge suspensions. Moreover, the policy is counterproductive; if people are too poor to pay, making it harder for them to get to work harms the gov't's fiscal interests. (Last month, the governor announced plans to cease the policy.)
Over 130,000 students in Florida are able to attend the schools of their families' choice thanks to a pair of programs enacted over a decade ago. Opponents say these students must all be sent back to their assigned public schools because the programs violate the Florida Constitution's requirement that the state provide an "adequate" and "uniform" system of public education. Today, the Florida Supreme Court refused to strike down the programs, ruling that in nearly a decade of litigation, opponents never adequately preserved their constitutional arguments. The dissent: We should get to the merits anyway. The majority: No, we shouldn't. That would be "an approach that not so subtly attempts to drag politics into judicial decision making." Affirmed.