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.
State restrictions on selling homemade food items often serve no public health and safety interest and prevent people—disproportionately women from poor and rural areas—from earning an honest living. Read more about North Dakota's recent crackdown on food freedom in USA Today from IJ staffers Jennifer McDonald and Daryl James.
- In 2014, a commercial flight en route to Beijing disappears over the southern Indian Ocean. All 239 passengers and crew, including three Americans, presumed dead. An investigation yields little insight as to the cause. And, says the D.C. Circuit, the district court did not err in holding that claims against Boeing and Malaysia Airlines should be brought in Malaysian courts.
- In 2002, Congress amended the Animal Welfare Act to make clear that it applied to birds not bred for research, thereby requiring the USDA to promulgate regulations on the humane care and handling of such birds. However, to this day the USDA has issued no regulations. A violation of the Administrative Procedure Act? The case should not have been dismissed, says the D.C. Circuit.
- After 30 years in prison for burglary and rape, North Carolina man discovers that prosecutors at his 1976 trial withheld (among other evidence) forensic results that did not link him to the crimes and a sample of the rapist's semen. Fourth Circuit: The state courts reasonably determined that none of the withheld evidence would have had an impact on the man's trial, so his convictions stand. Dissent: That is emphatically wrong. "[T]here is zero doubt in my mind that the cumulative effect of the suppressed evidence in this case" might well have had an impact on the trial.
- Fourth Circuit: Virginia environmental officials must reconsider their decision to grant a permit to a pipeline company to build a compressor station (which would burn gas 24/7/365 days a year) in a historic community established by freed slaves after the Civil War. (Per Georgetown's Civil Rights Clinic, it's one of the few remaining Freedmen communities in the country.) Officials failed to properly consider how emissions from the station would impact the community.
- After the University of Texas and San Antonio officials decide to remove Confederate monuments, the Sons of Confederate Veterans sue to keep the monuments in place. The claim? Removing the monuments violates our First Amendment rights because we like what the monuments stand for. Fifth Circuit: No standing. The First Amendment lets you sue to prevent suppression of your own speech, not any speech you happen to agree with.
- Allegation: El Paso, Tex. woman is arrested on an outstanding warrant less than three days after undergoing leg surgery and while still confined to a wheelchair. Despite her physical therapist's conclusion that she is not a candidate for crutches, jail officials take her wheelchair, require her to use crutches, and force her to carry her own food while using crutches, leading to a fall that aggravates her injuries and requires another surgery. Fifth Circuit: And that may well violate the Americans with Disabilities Act, though it's not egregious enough to violate the Eighth Amendment.
- For unknown reasons, unknown individuals jump out of a car and shoot at a Saginaw, Mich. restaurant. Can city officials shut down the restaurant because it was the target of a crime by unknown third parties? Two-thirds of this Sixth Circuit panel thinks maybe not.
- Saginaw County, Mich. ordinance forbids all but one ambulance company from operating. "That's unconstitutional!" says a second company, which starts providing services. Rather than enforce the ordinance, county officials wait six years to file a federal lawsuit asking the courts to declare that the monopoly isn't unconstitutional after all. Which, says the Sixth Circuit ever so gently, is not a thing the government can do.
- In a bizarre bid to defeat a client's child porn prosecution, expert witness creates more child porn. (He manipulates photos of minors to show them having sex.) Sixth Circuit: This plan was malicious as a matter of law. So bankruptcy does not eliminate the minors' $300k judgment against the expert.
- Distasteful though it may be, holds the Sixth Circuit, a high school football coach does not violate Title IX by calling a player a "pussy." (Although, suggests the dissent, he may commit intentional infliction of emotion distress.)
- Tennessee state representative sexually harasses at least 22 women, is expelled from the legislature. His lifetime health benefits are terminated. Can he sue the officials who decided to terminate his benefits? His suit is not barred by sovereign immunity, says the Sixth Circuit.
- Man spends three decades in prison for a double murder he did not commit after Peoria, Ill. police (allegedly) fabricated evidence and forced his confession when he was just 14 years old. He's paroled in 2006, his sentence is commuted in 2011, and he's pardoned in 2015. He sues the city within two years of the pardon. City: Too late! You should've sued once you were paroled. Seventh Circuit (en banc, over a dissent): Heck no. Central to his claims is that his conviction was invalid, so his conviction had to be invalidated before he could sue over them. And that didn't happen until he was pardoned, so his case is timely.
- Missouri, like many states, has a "three-tier system" of alcohol regulation that prohibits alcohol producers and distributors from having any financial interest in an alcohol retailer. Missouri officials interpret the law to prohibit alcohol producers and distributors from retail advertising. A First Amendment violation? Officials: No way! The statute doesn't say anything about speech; it merely bans advertising. Eighth Circuit: … Oh, that's it? We thought you were gonna keep going. No, that's definitely unconstitutional.
- Allegation: After meeting with his lawyer, Florida inmate is escorted back to his cell by a prison guard. The guard orders him to sit. Then stand. Then sit. Then stand. When the inmate asks what's up, the guard pepper sprays him, slams him on the ground, pulls down his pants, and forces a finger up his anus. District Court: I don't believe you. Summary judgment for the defendant. Eleventh Circuit: That's the jury's call, not yours. Also, we repudiate an earlier decision that suggested that maybe a little bit of sexual assault in prison is okay.
- Then-U.S. congresswoman raises $800k for her charity, disburses only $1.2k for charitable purposes, spending the vast majority on personal expenses. At trial, the district court dismisses a juror who indicated during deliberations that he'd had a divine revelation that the congresswoman was not guilty on all counts. She's convicted. Eleventh Circuit (over a dissent): The judge did not err by dismissing the juror. Dissent: The majority misunderstands "the vernacular of a substantial segment of our citizenry," and its decision will permit eligible jurors who believe God speaks to them to be stricken from jury pools.
- And in en banc news: Texas high court denies review of rape conviction, 50-year sentence but inexplicably fails to tell petitioner for eight months, causing him to miss deadline to seek review in federal court. He files his habeas petition eight days after learning of the denial. District court: Tough. You should've pursued your rights more diligently. Fifth Circuit: No, the court error gave rise to more time to pursue his deadline. And there'll be no en banc rehearing, despite the protestations of Judge Smith who finds the state's refusal to seek rehearing "astonishing" and the panel decision full of "obvious flaw[s]" (such as referring to the state as "the government," a term "uniformly reserved" for the feds).
- And in task force news: A Third Circuit task force studying the problem of mistaken eyewitnesses and wrongful convictions has issued a report recommending a commendable series of best practices for lineups, interviews, and more. (H/t to the inestimable CA3blog.)
Under the borough's rental inspection ordinance, Pottstown, Penn. officials claim the authority to enter homes to inspect them for housing code violations without individualized probable cause and without consent from tenants or landlords. Which does not sit well with Dottie Rivera, who does not want officials poking through her perfectly well-maintained home, which she rents. So in 2017, Dottie, her husband, and their landlord joined forces with IJ to challenge the ordinance under the state constitution, which provides stronger protections against suspicionless searches and seizures than the U.S. Constitution. And this week, a state appeals court ruled, among other things, that residents need not submit to an inspection before they can challenge the ordinance. Click here to learn more.