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.
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- The Public Records Act creates a number of requirements for preserving presidential records. Does the use by administration officials of apps that automatically delete messages once they have been read by the recipient violate the PRA? D.C. Circuit: Although "Richard Nixon could only have dreamed of the technology at issue in this case," the White House Counsel sent a memo to staff telling them not to use those apps, and that's good enough for us.
- The DEA classifies marijuana as a drug with no accepted medical use, akin to LSD and ecstasy (among others). But many turn to it for medical reasons, as do plaintiffs (a group of children and adults suffering from life-threatening medical problems), who sue the DEA to challenge its classification. Second Circuit (over a dissent): Alas, we cannot hear the case until you first ask the DEA to review it. But because the DEA is notoriously slow in reviewing classifications (petitions average nine years each), we will retain jurisdiction of this case so we can ensure speedy review.
- The ACLU seeks a series of documents about national security programs, but the feds decline to hand them over on the grounds that they include attorney-client and deliberative, pre-decisional communications. Fair enough, says the Second Circuit. While the gov't can be forced to disclose if they adopted the information in those documents as their policy, the guvvies didn't expressly do so here. So they can keep the docs to themselves.
- Following the 1979 rape and murder of a mother of two, Forrest County, Miss. police arrest three suspects, threaten to kill them, and beat confessions out of them. After serving a collective 83 years in prison—during which they suffered numerous assaults by other prisoners—DNA exonerates them. One of the men died in prison, another shortly after release, and the third died after only three years as a free man. Fifth Circuit: With that background, let us explain why well established law requires these insurance companies to pay for the county's legal defense in the families' civil rights lawsuits.
- Acting on a tip, DEA agents in wait for a black Toyota Camry, said to contain oodles of heroin. They spy the Camry and also notice a RAV4 that appears to be driving in tandem with it. So they pull over the RAV4 too. And find two kilograms of heroin. Jackpot! District court: There was no reasonable basis to stop the RAV4, so evidence of the heroin must be suppressed. Sixth Circuit: To the contrary, the DEA agents reasonably suspected that the two cars were working in concert, which was enough to justify stopping both of them.
- "Where is the treasure? Where are the assets? Where's the loot?" Avast, ye readers, and attend the tale of Thomas Thompson, treasure hunter. After Thompson recovered gold coins from a sunken ship, he refused to pay his co-salvagers, absconded to Florida, and hid the coins (possibly in a trust in Belize). The district court locked him up for contempt. Can he get out now that he's been incarcerated for the last year and a half? Sixth Circuit: He stays in the brig!
- Medically disoriented man is driving erratically at night. Police impound the car, but the man refuses treatment, so they drop him off at a Georgetown, Ky. restaurant to wait for a ride home. The man wanders away on a nearby road, where he is killed by a passing car. Sixth Circuit (over a dissent): Tragic facts but no legal remedy.
- The Sixth Circuit rejects challenges to a suite of Kentucky campaign finance and ethics rules and, in so doing, teaches us all about "the infamous … Operation BOPTROT," which was a real thing involving actual grownups.
- Undercover agent accepts a fully nude lap dance from a dancer at "Cheeks," a West Carrollton, Ohio strip club. With the agent's extraordinarily thorough investigation (see pages 5-6 of the gov't's brief) completed, the state revokes the club's liquor license, but gives it the option to pay a $25K fine instead. The club sues. Sixth Circuit: Most claims were correctly dismissed, but the district court erred in saying that the $25k fine is not subject to the Excessive Fines Clause. The Commission conceded that the fine is a penalty. So the district court must determine whether that penalty is an excessive one.
- Man serves 19 years for Peoria, Ill. home invasion, sex assault. He's innocent. Can he sue the city and four officers for using coercive interrogation to elicit a false statement from an alleged accomplice and for suppressing impeachment evidence? The Seventh Circuit says no. The man failed to present evidence to show that the officers knowingly violated the law. "[A] vacated criminal conviction does not automatically establish an individual's constitutional rights were violated, or that police officers and prosecutors are necessarily liable under Section 1983."
- If you file an ethics complaint against a public official in Montana, you're prohibited from disclosing the complaint until the Commission on Political Practices makes a decision on whether to pursue it. You can disclose the fact that you filed a complaint and all the facts in the complaint—just not the complaint itself. Ninth Circuit: Well, that sounds like the law accomplishes nothing, which is generally not a sufficient reason to ban speech.
- After a 13-year-old reportedly danced at a Miami strip club, the city cracked down with new laws. The club then challenged the laws in a 16-count complaint. And according to the Eleventh Circuit, many of those counts are ripe for adjudication. Come for pleading "that might inspire a law-school professor writing a final exam," stay for the cutesy lede that has divided appellate Twitter.
Ouch. It's been a tough couple of weeks for food truck freedom. This week a Maryland appeals court reinstated Baltimore's ban on mobile vendors operating within 300 feet of stores selling similar food, which was passed at the request of the retail-business lobby. And last week, the Illinois Supreme Court rejected a challenge to Chicago's 200-foot ban and requirement that trucks install GPS tracking devices. Which is a darn shame, says IJ attorney Robert Frommer. These "rulings sharply break with decades of precedent that protects the right to earn an honest living. There is nothing reasonable about the government prohibiting you from operating near your competitors, or tracking you like a criminal out of fear you may sell delicious food to willing customers. By failing to stand up to the powerful on behalf of ordinary folks, these courts have done a profound disservice to the constitutional rights of everyone in their states."