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: A special Ninth Circuit edition recorded before a live student audience at UCLA Law. Featuring UCLA Professors Eugene Volokh and Richard Re as well as Jones Day Associate Robert Everett Johnson. Click here for iTunes.
- Fed up with conditions for laboratory animals at Howard University, attending veterinarian contacts the NIH to let it know about the recent deaths from heat exhaustion of 21 mice. The university responds by shortening her contract by six months. D.C. Circuit: Which may be illegal retaliation against a False Claims Act whistleblower.
- During a criminal trial of four co-defendants, a juror's wife is diagnosed with a brain tumor. Three of the defendants agree to proceed with a jury of 11. The government agrees to proceed if all four defendants agree to do so. The fourth defendant—who has tried repeatedly to get out of the case—holds out. The court declares a mistrial. Does double jeopardy bar retrial? First Circuit: Not at all. The mistrial was manifestly necessary. (Plus, the defense now has a sneak peek at the prosecution's case.)
- Allegation: Connecticut voting law counts prisoners in the district where their prison is located rather than their home district—even though most do not have the right to vote and those who do can vote only in their home district. Which artificially inflates voting power in the white rural areas where prisons are located and deflates representation in the majority-minority urban areas of the state. Second Circuit: This should be heard before a three-judge panel at the district court.
- The Mohegan Sun Arena, a publicly owned Wilkes-Barre, Penn. event space, sequesters protestors in a special enclosure near the arena's entrances. The facility also prohibits protestors from swearing or using megaphones. Animal rights group: Those restrictions violate the First Amendment! Third Circuit: Yes and no. The special enclosure is valid since that's a reasonable measure to prevent congestion at the arena's entrances. But singling out protestors for bans on profanity and megaphones? The arena hasn't come close to justifying those rules.
- When New Jersey repealed its prohibition on sports betting, the NCAA, NFL, NBA, MLB, and NHL sued, arguing repeal violated federal law. The leagues won in the trial court, but racetrack owners who wanted to offer sports betting eventually won before the U.S. Supreme Court. Can the racetrack owners now collect on the $3.4 million the leagues were forced to put up as bond after they won a temporary restraining order in the trial court? Third Circuit (over a dissent): That's the risk the leagues ran when they asked for a TRO.
- Dallas-area photographer responds to the scene of an overdose, begins photographing victim and paramedics. Transit officer orders him to stop and arrests him when he refuses to do so. Whoops! Transit department guidelines—adopted while the officer was on medical leave—explicitly permit this sort of photography. Fifth Circuit: Reasonable officers know they can't arrest you for things that aren't illegal. No qualified immunity.
- This Sixth Circuit opinion (holding that sovereign citizens' unconventional beliefs are not enough to stop them from representing themselves) contains, in the view of your humble editors, a surprisingly touching tribute to individual autonomy—as well as a narrative menagerie including Batman and 46 quintillion dollars.
- The University of Michigan has established a "Bias Response Team" that responds to student-reported "bias incidents." Although it lacks any power to impose punishments, it can make referrals to police or the university. Does that unconstitutionally chill speech? A free speech advocacy group whose members attend the school has associational standing to find out, says two-thirds of a Sixth Circuit panel.
- Detroit police raid home. Oops! The owner is—unbeknownst to the officers—a licensed medical marijuana provider, who is not pleased when an officer shoots, kills two of his dogs. Owner: The dogs were calm. Officer: The dogs were aggressive. And one was unlicensed and therefore contraband. Sixth Circuit: No qualified immunity. The owner can sue the officer.
- Sixth Circuit: Getting stinking drunk and then cleaning a gun may be "dumb," but, without more, it does not justify involuntary commitment. No qualified immunity for cops who committed a woman for doing just that. Dissent: You'd be singing a different tune if the gun owner had actually harmed herself following the text message "Good bye." The police acted reasonably.
- The U.S. Supreme Court's decision in Reed v. Town of Gilbert worked a revolution in the First Amendment treatment of content-based regulation of signs. Seventh Circuit: Which doesn't help the owners of Leibundguth Storage & Van Service in Downers Grove, Ill., whose sign (picture in opinion) is treated just as badly as anyone else's.
- Allegation: Driver attempts to exit mall parking lot to avoid approaching security guard, an off-duty Little Rock, Ark. police officer. As the car drives away from the officer, he opens fire, hitting the driver in the back four times and a passenger in the face. Excessive force? Officer: The car was actually backing up toward me and other guards when I fired. Eighth Circuit: This goes to a jury. No qualified immunity. (Per The Washington Post, the officer was involved in 69 use of force incidents over six years.)
- Tenth Circuit: There's chutzpah and then there's arguing that the guards you employ to provide security to state-legal marijuana businesses can't avail themselves of federal labor law because they participate in "drug trafficking."
- State court in Bryan County, Ga. issues man an $895 speeding ticket. Man: I don't have that kind of cash on me right now. Judge: OK, pay it within two weeks. The man pays the fine the next day. But months later, a probation officer submits a warrant for the man's arrest for … not paying the fine. And months after that, he's arrested. And briefly jailed. Which causes him to get fired from his job. Eleventh Circuit: The probation officer enjoys qualified immunity from the man's federal claims, but she's not immune from the man's state-law tort claims.
- Colorado police arrest two men for handing out information on jury nullification outside a Denver courthouse. A First Amendment violation? Colorado Supreme Court (over a dissent): No need to decide that. The statute applies only to efforts to influence a specific case, and these guys didn't care what cases prospective jurors might sit on.
- And in en banc news, the Fourth Circuit will not reconsider its holding that the feds' power to regulate interstate commerce permits them to prosecute a man who attacked a coworker out of anti-gay animus. Judge Agee, who dissented from the panel ruling, writes that the issue of when noneconomic activity falls under the scope of the Commerce Clause is one the Supremes should address "without delay." The Fifth Circuit, however, will reconsider its recent holding that Mississippi's legislative boundaries (redrawn in 2012) dilute African Americans' voting strength in the Mississippi Delta in violation of the Voting Rights Act.
Zion, Ill. forces landlords to force tenants to submit to warrantless inspections of their homes. Landlords who refuse may face fines of up to $750 per day or have their right to rent property revoked altogether. Which doesn't sit right with Dorice and Robert Pierce, who have called their apartment home since 2000. After the Pierces demanded that inspectors produce a warrant before searching their home, officials threatened them with eviction (and their landlord with ruinous fines). Which is unconstitutional, so today the Pierces and their landlord joined with IJ to challenge Zion's rental inspection ordinance in federal court. Click here to learn more.