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.
Since the Nixon administration, the Securities and Exchange Commission has refused to settle civil or administrative enforcement actions unless defendants agree to lifetime gag orders preventing them from criticizing the SEC. Say the agency has a weak case against you but is willing to let you go for less than it would cost to defend yourself. Do you settle? Not if you ever want to defend your name in public. The agency's press release maligning you will be the last word on the matter. Which violates the First Amendment, argues IJ Senior Attorney Robert McNamara over at Bloomberg Law.
- A Massachusetts ban on certain semiautomatic weapons and magazines capable of holding more than 10 rounds does not violate the Second Amendment, says the First Circuit. Though law-abiding, responsible citizens will no longer be able to use such weapons in defense of hearth and home, they can still use handguns. "[W]hen asked directly, not one of the plaintiffs or their six experts could identify even a single example of the use of an assault weapon for home self-defense, nor could they identify even a single example of a self-defense episode in which ten or more shots were fired."
- Massachusetts sues the feds, challenging federal rules that grant religious and moral exemptions from the contraception mandate of the Affordable Care Act. Feds: Massachusetts doesn't have standing, because it "cannot point to a single woman who will lose coverage she would otherwise want." First Circuit: But the Commonwealth has shown a substantial risk that at least some women will lose coverage (and thereby cause Massachusetts to incur costs). That's enough for standing.
- Recovering addict is due to be jailed for 40 days, during which time Aroostook County, Me. jail officials tell her she will not receive her duly prescribed, twice-daily dose of medication to treat her opioid-use disorder. (Which will force her into painful withdrawal and increase her risk of relapse, overdose, death.) District court: Given her likelihood of prevailing under the Americans with Disabilities Act, she gets a preliminary injunction protecting her access to the meds. First Circuit: Just so.
- Most class actions involve classes of plaintiffs, but keep a weather eye out for what the Fourth Circuit (cribbing from the Seventh) describes as the "unicorn" class action—the class is getting sued, not doing the suing! Sadly, though, this sort of unicorn is a unicorn even amongst unicorns: Unlike the standard unicorn—"majestic and even magical," in the Fourth Circuit's experience—defendant class action unicorns can suffer from hideous deformities relating to due process and to inadequate representation of absent class members.
- ICE agents stop, arrest nine Latino men in Northern Virginia and then initiate deportation proceedings. (One of the men is a U.S. citizen.) Can the men seek damages from the agents for stopping them without a reasonable, articulable suspicion of unlawful activity, among other claims? Fourth Circuit: No can do. Only Congress can provide a money damages remedy against ICE agents, and it hasn't done that.
- Tattnall County, Ga. guard discovers prisoner in solitary confinement hanging from a noose. Guard: Which I thought might be a ploy to lure me into the cell so he could ambush me. So I called for backup and did paperwork. (Officers enter the cell seven minutes after the guard first saw the prisoner.) The prisoner dies. Fifth Circuit: The guard, who was 6 inches taller and 30 pounds heavier than the inmate, reasonably feared for his security. No Eighth Amendment violation here.
- While Donna, Tex. jail officers are preoccupied putting up posters that say "Welcome to Donna Hilton" and display a logo of the Punisher (a comic book character known for meting out extrajudicial punishment), detainee hangs himself. Do the signs indicate a municipal policy of mistreating detainees? Fifth Circuit: No.
- Now-repealed Texas law required plaintiff, a blind sex offender, to pay to wear GPS tracking device. Not paying was a felony. But plaintiff's only source of income was his Social Security benefits, which are protected against "execution, levy, attachment, garnishment, or other legal processes." Is the threat of criminal prosecution an "other legal process"? The Fifth Circuit says no; here, "other legal processes" means processes that are similar to the ones listed, and criminal liability is quite different from garnishment, et al.
- Defendants must be tried in the place where they committed their alleged crimes. So important is this venue requirement that it is found in two separate parts of the Constitution. Prosecutors take heed of this Sixth Circuit decision overturning 17 counts of mail fraud because the feds failed to establish they were in the correct venue. The defendant, who had lied to FedEx to get a shipping discount and then pocketed the difference when he overcharged his customers for shipping, may face new trials, as a dismissal on venue grounds doesn't qualify for double jeopardy protections.
- A member of the American Board of Forensic Document Examiners writes an article for an American Bar Association journal, in which he opines that judges should trust handwriting experts certified by the ABFDE and "be wary of other certifying bodies." Board of Forensic Document Examiners: Say what! We're an "other certifying body," and that spurious article has defamed our esteemed members. Seventh Circuit: "[T]he appropriate avenue for expressing a contrary point of view was through a rebuttal article, not a defamation lawsuit."
- Sex offenders imprisoned by Indiana are required to participate in treatment sessions in which they are asked to identify victims of their abuse and how they abused them. The questions aren't about just the crimes of conviction; they're about any sex abuse ever. And if the inmates don't participate, they can lose good time credits that would shorten their prison sentences. Seventh Circuit: The Fifth Amendment prohibits this sort of compelled self-incrimination.
- Over a dissent, the Seventh Circuit holds that death from autoerotic asphyxiation, even if accidental, still involves an "intentionally self-inflicted injury" that can prevent a life insurance payout. The Second and Ninth Circuits disagree. (Will the Supreme Court resolve the split? Don't hold your breath.)
- Man convicted for a 1993 Anderson, Ind. murder is released in 2010 when it's revealed that investigators withheld evidence. Can he now get damages from an investigator who allegedly hid a video of witnesses identifying another suspect as the shooter? District court: No. Seventh Circuit: Maybe. There's enough evidence to get past summary judgment.
- Real estate holding companies go through Chapter 11 bankruptcy, strike a deal that allows them to repay all creditors in full and keep operating. But wait! The United States Trustee objects because one of the companies leases property to a marijuana farm in Washington state, in violation of federal law. Will the debtors' repayment plan "go up in smoke"? Ninth Circuit: It will not. Federal law prohibits only plans that are proposed by means forbidden by law. Nothing about the way this plan was proposed was illegal.
After Jerome Davis and Veronica Walker-Davis' car was damaged in an accident, they took it to a Chicago body shop for repairs. But a shop employee, who took it for a joyride and was pulled over, didn't have a valid license, so police impounded the car. The city refused to release the car unless Jerome and Veronica paid thousands of dollars in fines and fees for someone else's crime. Their innocence was not a defense, and when they returned with the money, the city had already disposed of the car. This week, Jerome and Veronica teamed up with IJ to sue over Chicago's impound racket, which ensnares over 22,000 vehicles a year. Click here to learn more (and be sure to let us know if the city impounded your car).