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.
To ensure compliance with Chicago's ban on food trucks operating within 200 feet of a restaurant, city officials require food truck operators to install GPS tracking devices that transmit a truck's location every five minutes. An unreasonable search? We think so! But earlier this year the Illinois Supreme Court disagreed. This week, IJ filed a cert petition urging the Supreme Court to give the case a look. Click here to learn more.
- In an appeal of President Trump's effort to block congressional subpoenas aimed at forcing an accounting firm to disclose records about him or his businesses, the D.C. Circuit (over a dissent) says Congress can subpoena whatever it darn well pleases.
- In an appeal of President Trump's effort to block congressional subpoenas aimed at forcing banks to disclose records about him or his businesses, the Second Circuit holds that media organizations have a right to intervene to seek unsealing of certain documents. It also holds that they don't have a right to have those documents unsealed.
- New York trial judge loses her reelection bid after a local Democratic party judicial screening committee deems her unqualified, ultimately preventing her from securing the party's endorsement. A violation of the judge's equal protection rights? The Second Circuit says no; you can only sue the gov't for violating equal protection, and the Democratic party isn't acting as the gov't (at least here anyway).
- Man calls 911 when his brother breaks into the house, apparently high on drugs. San Antonio, Tex. police arrive; they try to handcuff brother, who resists. When brother picks up a laptop, police worry he'll use it as a weapon and tase him at least seven times. He dies. District court: Might well be excessive force. A jury shall determine. Fifth Circuit: Qualified immunity.
- Ohio man is convicted of burglary, robbery, murder, and sundry other crimes. Simultaneously—the man later learns—his defense attorney had been under indictment by the same prosecutor's office for a raft of felonies relating to sexual misconduct, rape, and kidnapping other clients. Yikes! The man should have the opportunity to raise an ineffective-assistance-of-counsel claim, says the Sixth Circuit.
- Michigan teen is convicted of aiding and abetting murder after her abusive boyfriend kills a former houseguest. Instead of trying to show that his client didn't know of her boyfriend's murderous intent, the woman's lawyer spends the trial arguing that the boyfriend himself was innocent. (He wasn't.) That strategy suffered from "significant deficiencies," observes the Sixth Circuit, but it's not clear the trial would have turned out differently if the lawyer had done a better job. The woman's life sentence stands.
- Michigan man is charged with aiding and abetting first degree felony murder after he gives a gun to his girlfriend (who uses it to kill an ATM customer). Due to "a shocking lack of comprehension regarding the pertinent law," the man's lawyer advises him not to seek a plea deal and assures him that he'll be acquitted at trial. He isn't, instead earning a mandatory life sentence. And defense counsel's actions amounted to ineffective assistance, says two-thirds of a Sixth Circuit panel.
- It's a classic love story: boy meets girl, the two fall in love, and they wish to marry. Except the boy in this case is serving a 100-year sentence for two counts of intoxicated vehicular homicide, and the girl is his former prison psychologist. After a surreptitious affair that included secret letters, hidden photographs, and steamy phone sex—all conducted by the psychologist under the alias "Cassie Fox"—the two apply to the warden for permission to be married. Warden: Uh, no, this is a serious safety concern. District Court: Agreed. The lovestruck couple: But love knows no bounds! Seventh Circuit: Yes it does, and this is one of them. Affirmed.
- Under California law, owners of state-licensed cardrooms are not allowed to own more than a 1% interest in an out-of-state gambling business that would be illegal if operated in California. One such cardroom operator challenges the prohibition as a violation of the Dormant Commerce Clause. District Court: But you filed beyond the two-year statute of limitations. Ninth Circuit (over a dissent): Doesn't matter; the law creates an ongoing injury, so the case can go forward.
- Tenth Circuit: "Today we must decide, among other things, how to proceed where two of the three panel judges share some common rationale, yet ultimately reach different outcomes, and a different combination of two judges reach a common outcome by using different rationales." (Ed.: You ask the second judge whether the first judge thinks the third judge guards the door with the treasure behind it.) ((This is the case about the SWAT raid of an innocent family triggered by an officer surveilling a hydroponics supply store. We spoke to the family on the podcast.))
- LaGrange, Ga. officials have a policy of shutting off electricity, gas, and water utility services (of which the city is the sole provider) without advance notice to residents who owe debts to the city, including court debts. Plaintiffs: Which has a disproportionate impact on black residents and violates the Fair Housing Act. Eleventh Circuit: The suit should not have been dismissed.
- Score one for the little guy in this absolutely charming decision from the Pennsylvania Supreme Court, which holds that a man who cleaned up a city-owned vacant lot across from his house and took care of it for 30 years can argue that the property is now his under the doctrine of adverse possession.
- Jilted boyfriend to ex-girlfriend's dad: Give me $25k or I'll release a video of your daughter talking about smoking marijuana. Minnesota DA: That's criminal coercion. Minnesota Court of Appeals: Unfortunately, the coercion statute isn't limited to extortion. It covers threats designed to coerce any act, which is too broad to be constitutional. We're throwing the whole law out.
- Miami Beach doesn't like home-sharing services like AirBnB. And when we say "doesn't like," we mean a $20k fine for a first-time offender, escalating by $20k each time until it hits $100k. But state law limits municipal fines to $1k for a first offense and $5k for subsequent offenses. Can these be squared? Miami Beach: Absolutely! State law explicitly allows us to adopt "other means" of code enforcement; so we chose the "other means" of ginormous fines. Florida trial court: Too clever by half; the city's fines are preempted by state law.
When Linda Cameron applied for a permit to renovate her one-bedroom, one-bathroom home of nearly 40 years, Richland, Wash. officials said she would also need to pay to renovate the public street behind her property—widening the road, building curbs and gutters, and adding sidewalks (that don't connect to any other sidewalks). At an estimated cost of $60k, the city's demands mean Linda can't afford to do the project. This week, she and IJ filed suit against the city's abusive "impact fee." Though the Supreme Court has permitted such fees, it has stated that where there is no impact, there can be no impact fee. Otherwise, in the words of the Court, the gov't could engage in "out-and-out extortion." Click here to read more.