The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
(Here is the latest edition of the Institute for Justice's weekly Short Circuit newsletter, written by John Ross.)
Last week, the Supreme Court ruled that a New York law prohibiting merchants from telling customers that a small fee will be added to their bill if they pay by credit card—but not prohibiting charging the fee—implicates the First Amendment. We discussed the Second Circuit's decision to the contrary on the podcast (starts at 8:05). Click here for iTunes. Or click here to read an IJ amicus brief on the topic.
- Allegation: Supervisor at New York ad agency draws wildly inappropriate drawings of gay employee on whiteboard, makes wildly inappropriate comments. Lawful unguarded banter or unlawful harassment? Second Circuit: Title VII protects employees against harassment based on their sexual orientation, so the district court should have given plaintiff the opportunity to prove the latter.
- Woman attacked in her home; she calls 911. It takes several minutes for dispatchers to receive her location; Dallas police arrive at her house nearly an hour later, leave without entering after no one responds to their knocks or picks up the phone. Her family finds her body in the house two days later. Can they sue the telecom companies allegedly responsible for the delay in tracking her location? Fifth Circuit: No. (The family's claims against the city, the officers and the dispatchers are still pending.)
- Are appellate panels bound only by the holdings of previous panel decisions, or are they also bound to reject any arguments that could have been made by the losing party in the previous case—even if they were waived by the litigants? Last year, a 5th Circuit panel said it was bound by both. This week, an en banc 5th Circuit declines to address the question, drawing a fierce seven-judge dissent by Judge Jerry Smith (quoting Yogi Berra and IJ's amicus brief in the case in roughly equal measure).
- Farmington Hills, Mich., detective's incomprehensibly incompetent car-theft investigation leads to bogus charges against owner, who did not drunkenly crash and abandon it. The owner's car is impounded for five months; he has to hire a defense attorney; he suffers consequences at work—but he doesn't spend time in jail. Can he sue the detective? Sixth Circuit: Qualified immunity.
- Allegation: Detective accuses 100-pound, one-legged woman of murdering her paramour, dragging him to her car, throwing his 187-pound body off a Gratz, Ky., bridge. The detective lies to the grand jury, says bullets found in her home match bullets found in the body (they don't) and that the victim's DNA was found at the purported crime scene (it wasn't). She takes a plea deal, spends six years in prison before being released because a serial murderer confessed. Sixth Circuit: Her malicious prosecution claims against the detective can go forward.
- Woman: I didn't know that the man who jumped on the hood of my car (scaring the heck out of my kids) was a cop, so I continued backing out of parking spot, and he slid off the hood. Veterans Affairs hospital officer: I suspected her of panhandling, so I stood in her car's path, told her to get out, drew my gun and had to jump on the hood because she drove at me. Eighth Circuit: Her conviction for assaulting an officer and four-year sentence are affirmed.
- Motorist declines Nebraska trooper's request to search vehicle; 50 minutes later the K-9 comes, uncovers a little pot and some guns. Charges dismissed after state court suppresses the evidence. Can the motorist sue the trooper for detaining him without reasonable suspicion? District court: Yes. Eighth Circuit: No. The motorist was relaxed, was traveling cross-country, had a spare tire, said he didn't have a criminal history (and didn't), and said he was unemployed, which is reasonably suspicious enough.
- Allegation: Portland, Ore., forced limos and sedans to charge customers higher prices than taxis and schedule pickups at least an hour in advance—solely to protect taxis from competition. Ninth Circuit: Protectionism is not a legitimate government interest, but there is no need to look at the evidence to determine whether the city officials' justifications for the rules are mere pretext. They survive rational-basis scrutiny. This is an IJ case.
- Long Beach, Calif., zoning/permitting regime effectively bans tattoo shops in most of the city. District court: Plaintiff, who wants to open a shop in a restricted area, can't sue over the rules because he didn't first apply for an expensive permit that was virtually certain to be denied. Ninth Circuit: He can sue.
- Student turns in paper for University of New Mexico women's studies course describing same-sex attraction as "perverse," among other indelicate commentary. Professor: A good paper is backed up with authoritative citations, which yours lacks. Please rewrite and drop the inflammatory language. Student, unwilling to do so, withdraws from course and claims First Amendment rights have been violated. Tenth Circuit: Qualified immunity.
- The 10th Circuit (over a dissent) says the defendant in this case, which is captioned rather pruriently in the editorial staff's view, is not subject to a mandatory minimum sentence.
- Allegation: Federal regulation prevents plaintiffs (People for the Ethical Treatment of Property Owners) from capturing Utah prairie dogs and moving them to conservation areas. This has allowed the rodents, which live exclusively in southern Utah, to damage property (tunneling under airport runways), to take over playgrounds and sports fields, and to prevent construction of homes and businesses. Does the commerce clause, which authorizes the feds to regulate interstate commerce, authorize regulation of prairie-dog captures—a purely intrastate, noncommercial endeavor? The 10th Circuit says yes.
- Allegation: Officer demands ID from man who turns out to be running a diagnostic test on his girlfriend's car's engine outside Fort Lauderdale, Fla., apartment complex. The man demurs; the officer attacks, arrests him. His injuries require neck surgery and cause him to lose his job as a mechanic. To get out of bogus resisting-arrest charge, he pleads guilty to bogus operating-a-vehicle-without-a-license charge. Can he still sue the officer? Not for false arrest, says the 11th Circuit, but his excessive-force claim should not have been dismissed.
- Minneapolis officials levy $30k special assessment on 80-member church to pay for road resurfacing project. Minnesota court: Pay up.
- West Conshohocken, Pa., officials levy $130k fine on couple who built garage next to their house without permission and declined to demolish it whilst appealing order to demolish it. Pennsylvania court: You don't have to pay that.
- There is no evidence South Carolina law banning liquor-store owners from owning more than three stores "exists for any other reason than economic protectionism," says South Carolina's high court. So the law is unconstitutional.
In Minnesota, if you want to sell wine directly to the public from your vineyard, state law requires a majority of your grapes to be grown in state—a mandate that benefits only the state's grape industry. For vintners, the law raises costs and limits their ability to experiment with different blends—a necessary part of the job because Minnesota grapes yield overly acidic wines when they aren't blended with grapes from sunnier climes. So last week two wineries joined with IJ to challenge the law, which violates vintners' constitutional rights to engage in interstate and foreign commerce. Read more here.