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 month, Supreme Court Justice Clarence Thomas, citing "egregious and well-chronicled abuses," expressed grave concerns about civil forfeiture—and not for the first time. IJ Communications Associate Nick Sibilla has the story.
- In 2008, the EPA exempted farms from requirement to report incidents where animal waste emits air pollution (emissions into water and soil must still be reported). D.C. Circuit: Though it's not clear how farms are supposed to measure such emissions, the relevant statutes do not authorize the exemption. Concurrence: "An Article III renaissance is emerging against the judicial abdication performed in Chevron's name."
- To protect the northern spotted owl, federal officials strictly limit logging on federal land (double the size of New Jersey) in the Pacific Northwest. D.C. Circuit: Which harms lumber manufacturers by decreasing the supply of timber; they have standing to challenge the rule.
- In light of new guidance by the Trump administration, the Fourth Circuit has vacated a preliminary injunction ordering Gloucester County, Va.'s school board to allow a transgender student to use the restroom corresponding with his gender identity. Senior Judge Davis and Judge Floyd, concurring, offer some thoughts on where this case fits into the history of civil rights litigation.
- Baton Rouge, La., police pull over motorist whose expiration-date sticker is obstructed by license-plate frame. Motorist: Which is not illegal, so the stop was unlawful. Fifth Circuit: If the officers were mistaken about the law, they were reasonably mistaken. Conviction affirmed.
- Allegation: During raid of Moss Point, Miss., poker game, officer hits man with baton in back and elbow before he has a chance to comply with order to get down. Excessive force? Fifth Circuit: Qualified immunity.
- Sexagenarian rebuffs repeated attempts to investigate animal cruelty at his home; while brandishing gun, he allegedly tells neighbor he'll kill Memphis, Tenn., animal control officer if she returns. SWAT raids the house, kills him while he's on the phone with 911. Sixth Circuit: Not excessive force. Concurrence: Appalling but constitutional.
- Lexington-Fayette, Ky., officials arrest woman on warrant for her identical twin, confiscate $30 cash. Allegation: And kept the money after they cut her loose. Sixth Circuit: Which is not a constitutional violation. The gov't's interest in defraying the cost of her incarceration is substantial; her interest in her money is small.
- Can unions be held liable for hostile work environments? Quite possibly, says the Sixth Circuit, but the conduct a Detroit casino worker accuses union reps of here is not sufficiently severe or pervasive as to warrant a trial. Dissent: Racist remarks, violent temper tantrums, cursing, throwing a file at plaintiff; this should go to a jury.
- Allegation: Mentally ill inmate breaks ankle, files complaint when requests for X-ray and ice pack are rejected. Before complaint can be addressed, he's transferred to a mental institution and put on powerful medication. Six months after the injury, he finally gets an X-ray; he files a second complaint. The complaint examiner rejects it as untimely, sends notice to him at the prison rather than the institution, so he misses deadline to appeal. Seventh Circuit: His suit should not have been dismissed.
- Though African Americans constitute only 4.5 percent of population of Madison, Wis., they account for 37.6 percent of arrests—and 86 percent of targets of a surveillance and deterrence program aimed at repeat violent offenders. Did officers' decision to include plaintiff, an African American, in the program violate his equal protection and due process rights? The Seventh Circuit says no.
- Missouri trooper pulls over motorist driving in the left lane (but not passing) 3 mph over the speed limit. He tells motorist he'll let him off with a warning but continues questioning him and the passenger for 20 minutes. The motorist consents to a search, which yields contraband. Suppress the evidence? No need, says two-thirds of an Eighth Circuit panel.
- Federal agent learns that former NASA contractor is looking to sell paperweight containing a tiny amount of moon rock (purportedly given to her deceased husband by Neil Armstrong) to pay for the care of her seriously ill son and her grandchildren (whom she is unexpectedly raising after the death of her daughter). Rather than telling her that all lunar material is federal property, the agent leads a sting operation, culminating in armed agents dragging the woman (74 years old and 4 foot 11 tall) out of a restaurant booth into a public parking lot—where she is interrogated for nearly two hours in urine-soaked trousers. Prosecutors: Yeah, we're not charging her with anything. Ninth Circuit: And she can sue the agent.
- Some men have an unwavering dedication to law enforcement. Tenth Circuit: But when those men are not actually law-enforcement officers, and keep acting like they are after being repeatedly warned to knock it off, it is not unreasonable to throw them in jail for 11 months.
- Luxury resort owned by notable person declines to pay $32K owed to Miami paint supplier. Florida court: Pay what's owed plus $282K in attorneys' fees.
- Weeks before graduation, Catholic college expels African American student who allegedly pocketed proceeds from school plays. Racial discrimination? Pennsylvania Human Relations Commission: The school metes out disproportionately harsh penalties to African American students. School: We're a private institution. The commission doesn't have jurisdiction. Pennsylvania court: Possibly not, but the case can proceed.
- SUNY Potsdam student appeals suspension for sexual misconduct. His alleged victim told campus police that she did not indicate the encounter was unwelcome, stated she didn't want to get him in trouble, and declined to name him or participate in disciplinary proceedings. (He was identified by anonymous tip.) School officials increase his punishment. New York court (over a dissent): Expulsion reversed.
Called upon to defend his recent veto of civil forfeiture reform, Idaho Gov. Butch Otter recently told a local radio audience that police and prosecutors can only forfeit property after a felony conviction, which is plainly false. (Click here for more on that.) Over in Arizona, by contrast, Gov. Doug Ducey has just signed a bill that offers substantial protections for property owners. Among many other things, the bill repeals a provision unique to the state that allowed the gov't to collect attorneys' fees from property owners who unsuccessfully challenged a forfeiture action. Arizona is now the 20th state to reform its forfeiture laws. (Read more here.)