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 humble roundup is not a place for braggadocio. But this week IJ won big at the U.S. Supreme Court, striking a blow against excessive fines. And last week IJ won huge at the New Jersey Appellate Division, striking a blow against the abuse of eminent domain. CAN YOU HEAR THE FREEDOM RING?
- Allegation: Developer spends $500k on plans to build 50 homes for low-income residents on long-vacant Buffalo, N.Y. lots. But the mayor kills the project after the developer declines to hire the mayor's political ally as a contractor. Second Circuit: There is troubling evidence of cronyism, but the developer's claims can't go.
- Inmate at Fishkill, N.Y. prison (who is unrepresented by counsel) alleges an officer pushed him down concrete stairs. He names "John Doe" in his complaint but also refers to the officer as "C.O. Deagan." Later, he amends that to "Joseph Deacon," after a court orders the state to name the officers working during the shift in question. District court: Took too long to identify the correct defendant. Case dismissed. Second Circuit: Vacated. It was essentially a spelling mistake; it's implausible that the officer didn't know he was the one being sued.
- The federal government gives out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the Attorney General withhold grants from cities—like Philadelphia—that refuse to share information with ICE about the immigration status of arrestees? Third Circuit: Like multiple other courts to consider the question, we hold that Congress never gave the Attorney General that authority.
- Roanoke, Va. ordinance imposes stormwater utility charge upon properties with a certain amount of impervious surface—about 86 percent of the city's parcels. Railroad: Our crushed-rock rail beds are as pervious as lawns, which are exempt from the charge. The rail beds should be exempt, too; the ordinance violates a federal law prohibiting discriminatory taxes against railroads. Fourth Circuit: Ah, but this is a fee, not a tax. Judge Wilkinson, concurring: The company is just trying to get out of paying its fair share for environmental remediation, and its position would threaten numerous cities' clean-up schemes.
- In 1873, the Supreme Court infamously suggested that the Privileges or Immunities Clause of the Fourteenth Amendment protects only a rather paltry set of rights such as the right to use the navigable waters of the United States. And indeed since then the right to use the navigable waters has been more or less ignored. But was the right really so obscure and unimportant in the wake of the Civil War as it seems today? Nope, it was a super big deal, argues the Fourth Episode of the "fascinating" and "riveting" Bound By Oath podcast. Subscribe today.
- Intelligence officer works long hours managing high stress situation—Edward Snowden. She's diagnosed with depression; her once "outstanding" performance deteriorates. She takes medical leave, is recommended for another position by an interview panel but is blocked by management. Fourth Circuit: Her claim that the agency interfered with her ability to take FMLA medical leave ought to go to trial.
- Fact disputes and qualified immunity doctrine fuse into a headspinning medley in this case out of Kaufman County, Tex. Police respond to reports that a black man in a brown shirt is brandishing a pistol in public. The man fires at officers, then disappears. Minutes later, a black man wearing a blue jacket enters the road, over 100 yards away from officers. Claiming he's brandishing a pistol, officers shoot him four times, then tase him. He dies. Turns out he had a toy gun on him, not a real gun. And his dad, a witness, says he wasn't brandishing anything. Parents sue. Fifth Circuit: Parents' version of the facts supports a Fourth Amendment violation, but police officer is entitled to qualified immunity. Kaufman County, however, doesn't get immunity, so the parents can proceed against it. Dissent: "In that split second, [the officer] was justified in concluding that the individual riding at them while their guns were drawn was the armed suspect."
- Company runs auto service centers across the southeast U.S. under the name "Tire Engineers." Mississippi Board of Licensure for Professional Engineers & Surveyors: Change your name. Consumers might think licensed Professional Engineers are changing their tires. Fifth Circuit: Most people who don't work for engineering licensure boards probably realize that the word "engineer" can mean lots of different things. And under the First Amendment, the board can't use speech bans to impose its "preferred definition" of words on the public at large.
- Trumbull County, Ohio corrections officer repeatedly demands that 19-year-old inmate expose herself to him and masturbate. (She does.) And if true, says the Sixth Circuit, that misconduct would so clearly violate the Eighth Amendment that the officer is not entitled to qualified immunity. So to trial the case must go.
- Fort Collins, Colo., imposes no restrictions on male toplessness but prohibits women from baring their areolæ. Free the Nipple-Fort Collins sues, and, with the aid of a district court preliminary injunction, frees all nipples in Fort Collins. Tenth Circuit: Just so. Notwithstanding many other courts' decisions to contrary, we agree that the city has likely discriminated on the basis of sex and violated the Equal Protection Clause. And the city's citation to a Wikipedia article on "Breast" does not change the analysis. Dissent: "The proper standard of review is the rational-basis standard generally applied to economic and social regulation."
- Allegation: Motorcyclist flees from aggressive driver but after a quarter of a mile realizes for the first time that it's the cops. He pulls over. A LeFlore County, Okla. deputy drives into the motorcycle, flinging the cyclist into a ditch. A second officer strikes the unresisting cyclist, breaking his face. After he's cuffed, the second officer repeatedly knees the cyclist in the ribs. District court: Qualified immunity for ramming the cyclist into the ditch. Tenth Circuit: But no qualified immunity for the second officer.
- Developer seeks to develop its Pasco County, Fla. property into retail shopping. County officials demand that the developer dedicate 50 feet for a road, later raising the demand to 140 feet—more than a quarter of the total parcel. Alas, says the Eleventh Circuit, no substantive due process claim arises out of an unlawful application of a land use ordinance. (Fret not, years ago the county paid nearly $5 mil to settle the takings claim.) Concurrence: The attempt to revive a dropped takings claim and infuse it with new life under substantive due process is "not how constitutional law works."
- Pelham, Ga. prison guard discovers that inmates are operating a phone scam, tricking people into giving them prepaid debit card numbers. Casting himself as "Robin Hood," the guard seizes the numbers. Eleventh Circuit: But you left out the critical part of the Robin Hood mythos in which he returned the money to the commoners. Conviction affirmed. (Bonus: Part of the case turns on the fact that the guard is known to be an "asshole.")
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