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.
Nature's Little Recyclers is a father–son business that does composting on empty residential lots, transforming organic waste into nutrient-rich soil. Last year, the business's worms processed 10 tons of banana peels and cups from the Chicago Marathon that would otherwise have gone to a landfill. But Chicago officials are going to shut the business down—and not because the city doesn't think composting is a good thing (the city's sustainability website directs people to Nature's Little Recyclers). Rather, the city's business and zoning regulations weren't designed to accommodate small and innovative operations like Nature's Little Recyclers. Click here to read more. And click here to sign a petition urging the city to free the worms.
- Via the D.C. Circuit: In which we learn that side effects of marijuana use may include a feeling that you are no longer flying.
- There's a good cross-examination, and then there's a Vincent LaGuardia Gambini-level cross-examination. D.C. Circuit: This case involved the latter, and it utterly destroyed the witness's credibility.
- Man harasses his ex for years, posts intimate videos of her online, directs strangers from the internet to her home for sex. She changes her name and moves across the country, but the harassment continues. He goes to prison for three years for cyberstalking. Upon release, he harasses a new victim. His supervised release is revoked. First Circuit: No error in sending him back to prison for two years, an upward departure from the sentencing guidelines.
- Over several months, man repeatedly threatens his next-door neighbor with profanity, racial epithets. The police investigate, warn the man to stop, and then arrest him when he does not. Eventually, the man leaves the apartment complex after the landlord declines to renew his lease. Can the neighbor sue the landlord for failing to intervene sooner? The Second Circuit says yes, the neighbor's Fair Housing Act claims should not have been dismissed. Dissent: The FHA doesn't say landlords can be liable for tenant-on-tenant harassment; more likely it precludes such claims.
- After railroad company builds salt storage facility in town, Shelburne, Vt. officials enact ordinance that bars salt from being stored at that location and imposes $800 to $10k per day fines for noncompliance. Second Circuit: There is no public health and safety rationale for banning the storage of salt. The ordinance thus falls afoul of federal law protecting railways from local regulations (unless those regulations meaningfully protect public health and safety).
- Federal criminal trials must begin within 70 days after a defendant is charged, but there are many ways to pause the clock. So it is rare indeed, notes the Third Circuit, that convictions are overturned on speedy trial grounds. And yet this week the circuit yields up not one but two such cases. Case 1: The gov't took 37 days to transport a defendant to a psych eval—something that stops the clock for just 10 days—and can point only to its own negligence for why it took so long. Conviction vacated, and no retrying defendant because he's already served his sentence. In Case 2, the trial court, of its own volition, postponed trial by 79 days but failed to discuss how that affected the speedy trial clock. Conviction vacated, but it's up to the trial court whether defendant can be retried.
- Allegation: Patrick's girlfriend, Nicole, cheats on him with David. Nicole tells David that his wife, Audrey, is having an affair, too—with Patrick. Nicole gives David the password to Patrick's email, allowing David to access emails between Patrick and Audrey, which might then help David in his divorce proceedings. Can Patrick sue David for accessing his email account? Indeed so, says the Fourth Circuit; Patrick's federal and state law claims should not have been dismissed.
- Motorist pulls over for Beaufort County, S.C. police but peels out as they approach his car on foot. The officers shoot him, causing grievous injuries. (The motorist's 6-year-old son is not hit, but another passenger is.) Fourth Circuit: No qualified immunity. It's unclear whether the officers fired while the driver was heading toward them (which would be reasonable) or while he was driving past or away from them (which would be decidedly unreasonable). So to trial the case must go.
- Former Armenian ambassador to China is charged in Ohio with participating in scheme to bribe Kazakh official to secure gas pipeline contract for British company. (The company has a subsidiary based in Ohio, and U.S. banks were allegedly involved to launder money.) The ex-ambassador is in China and declines to travel to Ohio to answer the charges; instead, he seeks (via his lawyers) to have the charges dismissed. Sixth Circuit: Under what's "known loosely as the fugitive disentitlement doctrine," he needs to show up to court to secure either "the benefits or the burdens of the ruling."
- Allegation: Retired cop gets into verbal altercation with Detroit cops at police event in Cleveland, Ohio. The Detroit cops beat him up. He's taken outside in handcuffs, where three Cleveland officers beat him up. Sixth Circuit: No qualified immunity for the three Cleveland officers.
- Minnesota officials limit participation on public high school competitive dance teams to female students. Two male students sue under the Equal Protection Clause, but the district court denies their request for preliminary injunction. Which, says the Eighth Circuit, was error. In limited circumstances, this sort of sex discrimination can be used to remedy past discrimination against members of one sex. But "over the past five years, the representation of girls in Minnesota athletics has been almost directly proportional to the number of girls enrolled at Minnesota schools." So there's no good reason to exclude the boys.
- Feds: $579k cash seized at roadside stop is drug money. Trucking company: It's not drug money. We want it back. Eighth Circuit (last year): No can do. This circuit's precedent says you have to explain in detail how you came by the money when you file initial paperwork to challenge a civil forfeiture—or the money is automatically forfeited. Eighth Circuit (en banc): Our precedent was wrong. It's enough just to assert ownership. Producing documentation comes later.
- San Francisco police investigating the murder of a pimp begin to suspect the family of a young girl whom the victim had been prostituting and obtain a warrant for cell phone location data from the girl's father and cousin. But! The warrant application talks primarily about the father with barely a mention of the cousin. No worries, says the Ninth Circuit; that wasn't enough to support probable cause, but the police were entitled to rely on the warrant in good faith. Dissent: Come on, guys. The cousin didn't even live in San Francisco, and the warrant application didn't bother to suggest he was in town the day of the murder.
- Allegation: Man is attacked on Salt Lake City, Utah street. His nose gets broken, but he can't identify his assailant. There were witnesses, but police do not process crime scene evidence or arrest anyone. The deadline for the man to file a civil suit against his unidentified assailant passes. Can the man sue the police for preventing his access to the courts? The Tenth Circuit says no.
- Allegation: Soon-to-be-released inmate at Sterling, Colo. prison fears his cellmate will kill him, asks for cell reassignment. The request is denied; 10 days later the cellmate murders the inmate. The inmate's estate sues prison officials just shy of two years after the murder. District court: Ah, but the deadline to sue started running when the cell transfer request was denied, so the suit was filed a few days too late. Tenth Circuit: That might not be true for all the defendants.
- Woman at Gillette, Wyo. grocery store calls police to report a theft; the suspect is apprehended. Yikes! The woman has an outstanding arrest warrant; she's going to jail, too. She asks to leave her purse in her truck, declines to let police search it. They search it, discover contraband. Tenth Circuit: Which is an illegal search. Suppress the evidence. She was handcuffed, and the purse was no longer on her person, so the cops needed a warrant.
- In Georgia, people who are not "lawfully present" in the U.S. cannot attend the state's three most selective colleges. That includes DACA recipients, several of whom sue. Claim: Federal immigration law preempts the Georgia policy. District court: It doesn't. Eleventh Circuit: Just so. Georgia's policy "looks to federal standards to verify lawful presence." And as DACA recipients, the plaintiffs "simply were given a reprieve from potential removal," which is different from being lawfully present.
If you want to pilot commercial vessels on the St. Lawrence Seaway and Lake Ontario, you need to get a license from the Coast Guard. That's all well and good; it takes a considerable amount of skill and training to navigate the waters safely. But there's more: You must also get the okay from a private, for-profit business, the St. Lawrence Seaway Pilots Association, which demands that would-be pilots pay $200k to join their association. This week, Captain Matthew Hight and IJ sued the Coast Guard for violating the Constitution by delegating its licensing power to a private entity. Read more here.