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.
New on the podcast: In which the Ninth Circuit holds that Fresno, Calif. police officers, who allegedly stole $226k from plaintiffs' homes and businesses, are shielded from suit by qualified immunity. Click here for iTunes.
- Defendants accused of murdering Buffalo, N.Y. drug dealer, among other crimes, spend over five years in pretrial detention after key evidence goes missing and prosecutors take nearly three years to decide whether to seek the death penalty. (The evidence was eventually found in the home of a retired detective.) At trial, the jury deadlocks. Second Circuit (over a partial dissent): No retrial. The delay violated their Sixth Amendment right to a speedy trial.
- Federal law requires certain time spent in state detention to count against federal prison sentences. So that's how federal prison officials count, and they release inmates accordingly. Can a judge sanction prison officials for that? Quoth the Fifth Circuit: "Threatening government officials with individual contempt sanctions for complying with federal law … is a clear abuse of discretion."
- Iranian metallurgist is doing electron microscopy at Case Western Reserve University, in Cleveland. The feds think he's also passing secrets back to Iran (about how its navy could better resist saltwater corrosion), so they seek a warrant based on the metallurgist's visa application, which suspiciously never mentioned Cleveland. Enough for probable cause? Sixth Circuit: It matters not. A magistrate gave them a warrant, so even if it was legally defective, the feds were entitled to rely on it in good faith.
- Illinois man is convicted for distributing a kilogram of cocaine, even though the prosecution produced no witnesses to the transaction, nor any direct evidence that he ever possessed cocaine, drug paraphernalia, or large amounts of cash. Was it enough that he (allegedly) used drug slang in phone calls? Seventh Circuit (after providing an interesting primer on drug slang): Convictions reversed. This case should never have gone to a jury.
- Man is convicted of falsely representing that his company's therapeutic shoe insoles were Medicare approved. As a felon, he is prohibited by both federal and Wisconsin law from possessing firearms. A Second Amendment violation? Seventh Circuit: Mail fraud is a serious crime; no problem here. Dissent: You can take guns away from felons who are dangerous, but not from those who are merely unvirtuous.
- Write it on your doorposts: The longstanding tax exemption for ministerial housing does not violate the Establishment Clause. Thus holds the Seventh Circuit, rejecting a challenge by the Freedom From Religion Foundation, a self-described "nonprophet nonprofit."
- Fresno, Calif. police seize cash pursuant to a search warrant, give property owners an inventory sheet stating they seized $50k. Allegation: The cops actually seized $276k, stole the difference. Ninth Circuit: It isn't clearly established that cops can't steal things they've seized with a search warrant, so they get qualified immunity.
- Woman discovers that her high school sophomore son's journal contains graphic depictions of violence and a hit list of 22 students who "must die." She tells a therapist; the therapist informs Sherwood, Ore. police, who search the home and find a rifle and ammo. Police decline to pursue criminal charges but inform the school district, which then expels the teen for a year. Ninth Circuit: School officials can indeed punish students for off-campus speech that is an identifiable and credible threat of school violence.
- Family brings a bunch of claims about the way Palmdale, Calif. city code enforcers shut down the family motel. Ninth Circuit: Most of the claims can't proceed in federal court while the city goes after the motel in state court. But that Fourth Amendment allegation—that during a code inspection the sheriff held the family's kids at gunpoint for an hour and a half? That claim can go right ahead. [Ed.'s Note: IJ has a history of tangling with the lawyers for Palmdale.]
- Out of nowhere, Phoenix, Ariz. prison inmate stabs cellmate 13 times. Inmate: Instead of an insanity defense, I want to present the defense of "demonic possession." Appointed counsel: That's not a thing, and I'm absolutely going to present an insanity defense. Ninth Circuit: Appointed counsel violated the inmate's Sixth Amendment rights. The inmate repeatedly objected to the insanity defense, and the buck stops with him.
- Kansas State University students bring Title IX suits, claiming school was deliberately indifferent to their complaints of having been raped by other students. KSU: To make out a Title IX claim, you need to show that our indifference caused you to actually get raped, and you told us about the rapes only after-the-fact. Tenth Circuit: It's enough for the students to allege that your indifference made them "vulnerable" to future harassment, not that they were actually harassed again. So the cases can proceed.
- In 2012, gunman uses Bushmaster XM15-E2S semiautomatic rifle to murder 26 people at Newtown, Conn. elementary school. Can the manufacturer, distributor, and retailer of the rifle be sued under state law even though federal law broadly immunizes them of liability for crimes committed by third parties using their weapons? Connecticut Supreme Court (by a 4–3 vote): The suit can proceed. If the rifles were marketed for civilians to use in offensive, military-style combat missions (as the plaintiffs allege), such marketing violates state advertising law. And a seller knowingly violating state law applicable to a gun's sale is not entitled to federal immunity.
- Missouri trial courts send people to jail, charge them room-and-board as "court costs," then send them back to jail if they can't pay, yielding—you guessed it—more court costs. Missouri Supreme Court: Cut it out.
- And in en banc news, the Eleventh Circuit will not revisit its previous decision concluding that a man who brandished a gun while robbing (or attempting to rob) two Miami-area stores committed a crime of violence. Fireworks erupt in an intra-circuit debate about the precedential effect of orders (which are uncontested and unappealable) disallowing successive habeas petitions.
In January, 30 property owners in Leonia, New Jersey got a nasty surprise. The city had included their properties in a condemnation redevelopment study area, the first step toward authorizing the condemnation of their homes and businesses via eminent domain and flipping them to a private developer. Sleepless nights ensued, but with help from IJ's Activism Team, they organized to fight city hall. And this week the city council backed off, passing a new resolution that removes the threat of eminent domain (but that will allow for voluntary redevelopment). At IJ, we're happy to fight eminent domain in court, but we're even happier when eminent domain gets taken off the table before it's time for a lawsuit, sparing property owners the years of anxiety and uncertainty that come with litigation. Click here to read more.