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.
Veggie burgers, vegan chorizo, meatless meatballs. Illegal! Thanks to a new law passed at the behest of the meat industry that went into effect this week, Mississippi can now impose fines and even criminal sanctions on plant-based food producers that accurately label their products based on what foods they are meant to be a substitute for. Which violates the First Amendment. Read more at Bloomberg.
- By law, the feds must publish a privacy impact statement before "initiating a collection of new information" involving personally identifiable data that will be stored electronically. Nonprofit: Which the feds didn't do before deciding to add a citizenship question to the 2020 census. D.C. Circuit: The nonprofit hasn't been injured, so the case is dismissed for lack of standing.
- Boston city hall occasionally flies a guest flag. That could be the flag of another country, the LGBT rainbow flag, a flag commemorating Juneteenth, what have you. But a request to fly a Christian flag is rejected. First Circuit: And that's ok. This is government speech, and the government is free to steer clear of religion.
- Victims of billionaire financier and sex offender Jeffrey Epstein seek to nullify his plea agreement (which strikes some as being too lenient). One victim accuses the financier's friend of recruiting victims, which the friend denies. The victim then sues the friend for defamation. The defamation case eventually settles after much of it, including the entire summary judgment record, is litigated under seal. Did the district court err by not allowing the public access to more material? Alan Dershowitz, Miami Herald, and Michael Cernovich: Yes! Second Circuit: In large part, yes. But we "urge the media to exercise restraint in covering potentially defamatory allegations, and we caution the public to read such accounts with discernment."
- Fairview Township, Penn. police officer steals drug proceeds from arrestees, is himself arrested. Officer: I was entrapped! Third Circuit: No. Although the FBI enlisted a fellow cop to keep an ear to the ground, the now-former officer was not induced to steal.
- Are immigration detainees entitled to the constitutional protections afforded by the Due Process Clause? The Third Circuit says yes and rejects qualified immunity for a Berks County, Penn. guard who repeatedly raped a detainee (of which he was later convicted) and officials who allegedly ignored it.
- Allegation: Iberville Parish, La. inmate reports extortion scheme involving prison guard to warden. In retaliation, three guards encourage another inmate to beat up the whistleblower and stand by while his jaw and teeth are broken. Fifth Circuit: There are some procedural hurdles standing in the way of the whistleblower's lawsuit. But he's since been released from prison, so he can sue again without some of the procedural hurdles.
- Tennessee police show up at house to serve a civil levy. The target of the levy exits the house, claims he doesn't live there and that he has no keys to get back in. Police let him leave (after taking his pocket change in partial satisfaction of the levy), but then circle the house looking for other property that could be taken. Uh oh! They smell marijuana and see what they believe to be partially smoked joints. They get a search warrant, come back, and discover a load of marijuana in the house. Sixth Circuit (over a dissent): No qualified immunity for the police, who should have known they couldn't search the curtilage (immediate surroundings) of the house without a warrant.
- Mentally ill inmate begins to improve while in prison treatment program. But after raising complaints about Lenox, Mich. prison officials, he is abruptly transferred out of the program. His mental health rapidly declines, to the point where he attempts suicide, after which he is kept restrained and left to lie in his own waste for six to seven hours. Sixth Circuit: Nobody gets qualified immunity in this "parade of horribles." (Also, don't write any emails you wouldn't want to see appear in a published judicial opinion, such as suggesting that a mentally ill inmate be transferred "to Mars.")
- After being roughed up by a Providence, Ky. police officer during a traffic stop, man tries to file a complaint. So the officer goes to his house, tasers him, maces him, breaks his nose, and beats him with his baton (all of which is caught on a body camera). After man is taken to hospital, the officer cites him for "(1) harassing communications, (2) resisting arrest, (3) assaulting a police officer, and (4) criminal mischief" for allowing his broken nose to bleed on the officer's uniform. Sixth Circuit: Qualified immun…no, just kidding. The officer is going to jail for 42 months.
- Purdue University student accused of sexual assault is suspended after allegedly Kafkaesque disciplinary hearing. The investigative report falsely says he confessed; two of the adjudicators don't read the report at all; he's not allowed to see the evidence against him; he can't call an eye witness; and the complainant presents her story only through a hearsay summary offered by a Purdue employee. Seventh Circuit: Could be fundamentally unfair, in violation of the Due Process clause, and sex discrimination against a man, in violation of Title IX. (But the due process claim has lots of technical problems.)
- Allegation: Suicidal teen puts a gun to his temple. A Benton, Ark. officer orders him to drop it. The teen begins to move the gun away from his head. The officer shoots, kills him. District court: It would have been "nearly impossible" for the officer to tell if the teen was complying with the order or if instead he was about to point the gun at officers. Eighth Circuit: No qualified immunity.
- Ninth Circuit (2017, over a dissent): There's nothing wrong with Berkeley forcing cell phone retailers to post a warning that suggests cell phones may expose users to unsafe levels of RF radiation. Supreme Court: Why don't you double-check that. Ninth Circuit (2019, over the same dissent): There. Is. Nothing. Wrong. With. Berkeley . . .
- The "act of wearing almost no clothing while serving coffee in a retail establishment" is not protected First Amendment expression, says the Ninth Circuit. So no need to enjoin a pair of Everett, Wash. ordinances that require bikini baristas to dress more demurely.
- Infirm inmate serving lengthy prison term sues guards after they allegedly injure him on walk across prison yard. At trial on his Eighth Amendment claims, the inmate is visibly shackled. Which was plain error, says the Ninth Circuit. The inmate's dangerousness was a merits issue at trial, so the trial court erred by ordering the inmate's shackling without first determining whether shackling was necessary.
- Allegation: Pretrial detainee has psychotic break, defecates on himself during transport to hospital. Denver sheriff's deputies remove his soiled clothing, march him through hospital wearing naught but a pair of mittens. Tenth Circuit (over a dissent): There's no prior case directly on point that put the deputies on notice that that violated clearly established law. But the detainee can still sue them because it's so outrageous.
- Scott County, Ky. sheriff's deputy initiates high speed chase of suspected drug dealer. Much goes wrong, and the fleeing drug dealer crashes into another car, killing the driver. Driver's estate sues the deputy. And to trial the case must go, says the Kentucky Supreme Court, overruling a prior decision holding that injuries caused by fleeing suspects can never be attributed to pursuing officers. H/t: TheNewspaper.com.
- And in en banc news, the Fifth Circuit will not reconsider its decision extending qualified immunity to Texas officials who searched a doctor's records without first giving him a chance to challenge their subpoena. The search violated the Fourth Amendment, but the officials couldn't have known that because there was no precedent on point saying so. Judge Willett takes the opportunity to edit his separate opinion; what had been a concurring dubitante is now a partial dissent that directly—and sharply—calls for a reevaluation of the qualified immunity doctrine.
In nearly every state (45 states plus D.C.), it is perfectly legal for doctors to dispense prescribed medication from their office during an in-person visit with a patient. But not in Texas. In Texas, of the state's nearly 65,000 physicians, only eight—who work in rural areas—are eligible to dispense medication. There is no good reason for the ban; pharmacies lobbied for it, and they got it. "The state trusts me to perform complex eye surgery, but doesn't trust me to give routine eye drops to my patients as they walk out the door," says IJ client Dr. Kristin Held. "The ban on doctor dispensing raises drugs costs, endangers my patients, and hinders my ability to practice medicine. The only ones who benefit are the pharmacies." In June, Dr. Held and Dr. Michael Garrett partnered with IJ to file a lawsuit challenging the ban. Read more here.