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, the Short Circuit team has just released Episode 3 of Bound By Oath, our podcast on the 14th Amendment. Please do give it a listen. On this episode: the Supreme Court reduces the Privileges or Immunities Clause, the clause meant to do much of the heavy lifting protecting civil rights, to a practical nullity. For shame! Professors Randy Barnett and Chris Green to do the explicating. And Justice Ruth Bader Ginsburg makes a surprise appearance, time traveling back to 1873. Subscribe wherever you get your podcasts or click here.
- Brentwood, N.H. man purchases four military M67 fragmentation grenades with inoperable fuzes from undercover FBI agents. District court: To be a grenade, a device must contain not only explosive material but also a means of detonating that explosive material. Inoperable fuzes mean the man didn't buy grenades. First Circuit: Reversed. The grenades were explosive; they just needed new fuzes. Congress can't have meant for agents only to use fully functioning "weapons of war" in their sting operations.
- Nineteen-year-old (or perhaps he's 20) impregnates 14-year-old in 2009, is sentenced to 16 years of probation. He seeks parental visitation rights; she tries to stop that from happening. Suit 1: State court won't stop it. Suit 2: Federal court won't stop it. Suit 3: State court won't stop it; he's been ordered to pay child support, and Massachusetts family courts were (at that time, anyway) authorized to adjudicate the parental rights of a parent convicted of statutory rape. Plus, the kid should be getting financial support from both parents. Suit 4: Federal district court won't stop it. First Circuit: Subject to exceptions that don't apply here, losing parties in state court don't get to re-litigate in federal trial courts.
- Hoke County, N.C. officer knocks on door of home, threatens to break it down unless it's opened. It's opened. A voluntary knock-and-talk or a coercive, warrantless entry? Fourth Circuit: Other than threatening to knock down the door, the officer and federal agents were casual and nonhostile. No need to suppress the evidence.
- A man is shot dead at a Wilson County, N.C. convenience store in 1976. Three alibis place Charles Ray Finch at a poker game when the shooting occurred, but a witness places Finch at the shooting and picks him out of a lineup. Finch is convicted. Fourth Circuit: We've now learned that the witness had cognitive and short-term-memory problems, that the lineup was unduly suggestive, that another witness was coerced, and that a host of forensic conclusions were wrong, so Finch's habeas claim—ordinarily time-barred—can go forward.
- Two people crawl through a Goldsboro, N.C. McDonald's drive-thru window, demand money at gun point, throw cash drawers at employees, hit the manager with the gun, and make off with $1k. One perpetrator pleads guilty to robbery and the additional, distinct crime of using a firearm in connection with a crime of violence. Fourth Circuit (en banc, splitting 8–7): Alas, the statutory definition of "crime of violence" is unconstitutionally vague, given the Supreme Court's treatment of materially identical laws. Dissent: Courts should look to the underlying facts of the crime, rather than just the statutory language in a hypothetical case, to determine whether a crime is one of violence. Pistol whipping during a robbery clearly is. (Circuit-split watch: The Fourth joins the Fifth, Tenth, and D.C. Circuits but departs from the Eleventh Circuit in this holding. Moreover: SCOTUS will hear the Fifth Circuit case.)
- Galveston, Tex. police get warrant to search drug suspect's house, seize any "ledgers" they might find. They seize a cell phone. Is a cell phone a ledger? Close enough, says the Fifth Circuit, so no need to suppress evidence from the phone (which helped convict him of pimping minors).
- Texas inmate threatens guard, has his stuff taken away, gets put in solitary. Or maybe—as inmate alleges—guard was lying, retaliating against inmate. Inmate brings a hodgepodge of claims (to get out of solitary, over loss of his stuff, and more). Fifth Circuit: Almost none of which can go forward. But if the guard really took away the inmate's Bible (and books by mega-pastors like Joel Osteen), there needed to be a valid reason. The inmate's First Amendment claim should not have been dismissed.
- "Sexed cow semen" is bull semen containing only X- or Y-chromosome-bearing sperm. It allows dairy farmers using artificial insemination to ensure they breed only female—and thus milk-bearing—cows. It's valuable stuff, and, until recently, the U.S. market was controlled by a monopolist whose technology worked by identifying sperm cells, electrically charging them, and then sorting them with magnets. But when an upstart hired one of the monopolist's ex-employees, she shared the monopolist's trade secrets. The upstart then began using a different, potentially faster method: individually vaporizing the unwanted sperm cells with a laser millions of times per second. The ensuing antitrust/patent infringement/breach of contract suit, culminating in a two-week trial, gave wins and losses to both sides. On appeal, the Seventh Circuit affirmed some of the monopolist's wins but also—in a complicated discussion of patent law featuring set theory, subscripted variables, and LSAT-esque diagrams—gave the upstart a second chance at invalidating the seminal patent claims.
- Federal law prohibits any "unlawful user" of marijuana from possessing a firearm. "Unlawful user" is unconstitutionally vague, says criminal defendant who admits to smoking daily for the past decade. Perhaps in some hypothetical scenarios, says Seventh Circuit, but your conduct "undoubtedly falls within the obvious core" of the statute. As a consolation prize, however, the court "commend[s] everyone involved in the briefing and arguing of this case" (along with the district-court judges) for a job well done.
- San Francisco requires that advertisements for "sugar-sweetened beverages" contain a warning, taking up 20 percent of the advertising space, that sugary drinks contribute to obesity, diabetes, and tooth decay. Unconstitutional compelled speech? The en banc Ninth Circuit unanimously agrees that it is, though they disagree vociferously as to why.
- Pizza chain's website and app are incompatible with screen reading software, so blind man can't order online. A violation of the Americans with Disabilities Act? District court: No, the Act doesn't mention the internet, and the feds have failed to provide formal guidance on how it applies—despite promising to do so. Ninth Circuit: Reversed. The feds have said that websites must comply; there's no need for the gov't to produce a blueprint detailing how to do it.
- Douglas County, Colo. officer tases man who has a rifle muzzle in his mouth and his thumb on the trigger. The gun goes off; the man dies. Can the man's parents sue the officer? No, they filed suit 27 days too late, says the Tenth Circuit; the deadline started running on the date they asked the coroner to reconsider her report, not when the amended report was released (over a year later).
- There are a number of federal crimes—from fraud to robbery—that apply only to banks that are FDIC insured at the time of the crime. Inexplicably, and despite repeated warnings from federal courts, prosecutors routinely fail to produce direct evidence that a bank was FDIC insured at the time of the crime—the testimony of a single witness would do—and instead rely on circumstantial evidence that it was insured at some point before or after. Is enough finally enough? Eleventh Circuit (over a dissent): Although prosecutors are "cruisin' for a bruisin'," we won't bruise them today.
- After seven years' imprisonment for rape, man is released after tests confirm that his DNA was not on the victim. Chatham County, Ga. DA declines to re-prosecute. Trial court dismisses indictment. And state lawmaker introduces bill to compensate the man $1.6 million for the wrongful conviction. But wait! The DA opposes the bill and (allegedly) falsely states that the man remains under indictment. Bill fails; man sues. Eleventh Circuit: The DA's defamation absolutely amounted to unconstitutional retaliation. But even so, qualified immunity. Concurrence: "My only comfort with this result is knowing that if another official in this circuit henceforth engages in conduct similar to [the DA's], he or she will not be entitled to hide behind the doctrine of qualified immunity."
- And in en banc news, the Eleventh Circuit will reconsider its holding that an Alabama law enacting a statewide minimum wage of $7.25 that preempts a Birmingham minimum wage of $10.10 might violate equal protection. The now-vacated opinion declared: "Today, racism is no longer pledged from the portico of the capitol or exclaimed from the floor of the constitutional convention; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends."
Officials in Yorktown, Indiana want to bulldoze a small neighborhood with many long-time, elderly residents and replace it with: a tech firm, other businesses, and new residences. To bypass the state's eminent domain law, which bars seizing property for private projects, officials have strategically placed some public amenities in the plan. Sneaky! Sharon and Jerry Puckett's home, for instance, is scheduled to be replaced by "courtyard/games" and part of a new restaurant. The kicker: The town already owns enough property to build the development just 500 feet away. IJ has helped gather over 105,000 signatures on a petition opposing the plan, and in January residents presented the Town Council with the petition. But the project is still rolling along, so please do sign the petition if you're of a mind.