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.)
Griswold v. Connecticut is one of the Supreme Court's most consequential and controversial decisions, and is associated with a doctrine that conservatives love to hate: "substantive due process." Evan Bernick of the Center for Judicial Engagement explains why the Court arrived at the right result for the wrong reasons, and why the decision matters today. Click here to read.
- District court: The CFPB acted outside its purview when it demanded records from a college accrediting agency (that is in hot water because of low graduation rates and high student debt at the schools it accredits). D.C. Circuit: The CFPB's demand was too broad, so we need not address whether it has the authority to investigate accreditors.
- Two days before a vote to unionize, employee posts profanity-strewn Facebook post, voicing support for union and making reference to his supervisor's mother. He's fired (after the vote). NLRB: Which was retaliation for protected union activity. Second Circuit: Indeed, the catering company consistently turned a blind eye to bad language.
- Man arrested entering Canada with cache of child porn. A U.S. district court sentences him to 19 years in prison, 25 years supervised release. Second Circuit: Which is more like a sentence for rape; could be the judge went hard on him because of his obnoxious personality. Remanded for resentencing.
- Allegation: Inmate with diagnosed mental health issues (nicknamed "Suicide" by other inmates) was vulnerable to suicide, so repeatedly putting him in solitary was inhumane. Third Circuit: His family can sue Pennsylvania corrections officials over his death.
- After 2008 scandal, Delaware corrections officials make effort (centralizing records, increasing staff) to remedy repeated failures to release inmates on time. Inmates allege the problem has since gotten worse; perhaps thousands are released days to weeks late each year. Third Circuit: Even if that's so, the inmates have failed to show deliberate indifference on officials' part.
- Allegation: Philly police push paraplegic drug suspect out of his wheelchair, handcuff him, and drag him to a police van after he declines to identify himself. Can he sue the city? Maybe he could have sued the officers, says the Third Circuit, but no evidence suggests the city's failure to police its police caused his injuries.
- Allegation: Sister (a police officer) calls police on armed, mentally disturbed brother who's in a Colleyville, Tex., residence with his 18-year-old daughter. Police arrive, and the daughter tells them she is not in danger but their presence is upsetting her father, who repeatedly opens the front door to yell at police while holding a gun. SWAT shoot him dead while daughter stands next to him. Though she does not resist, she's handcuffed and put in a squad car for two hours and then interrogated at the station for five hours—over her aunt's protests. Fifth Circuit: No qualified immunity for a Texas Ranger who interrogated the daughter.
- Do motorists have a First Amendment right to decline to answer officers' questions? There is surprisingly little case law on that, says the Fifth Circuit, and the officers in the instant case are entitled to qualified immunity on that claim. But the motorist, who alleges Round Rock, Tex. officers dragged him out of his car, roughed him up, and arrested him after he refused to answer questions, can press his excessive-force and other claims.
- Austin, Tex. officer working on federal bank robbery task force accidentally shoots, kills unarmed man who approached a just-robbed bank and aroused suspicions, took flight. A local prosecutor charges him with manslaughter. Fifth Circuit: He was acting as a federal officer, so he can't be prosecuted under state law.
- Concerned by 11-year-old daughter's behavior, mother takes her to medical professionals who prescribe an antipsychotic. Concerned by the drug's side effects, mother weans daughter off. The mental-health facility reports her to Wayne County, Mich. child protective services, which petitions court for custody of daughter. A judge does not review the petition; rather, it's approved by a probation officer using a judge's stamp. Police break into the family home after mother denies them entry, take daughter to institution, where she remains for six months. Sixth Circuit: The caseworker and the county are entitled to qualified immunity, as a state court ruled that the lack of judicial review of the petition did not render it invalid and that there was probable cause to take the daughter.
- Man dials 911 after burglars break into his Columbus, Ohio, home; he disarms a burglar and flees outside toward a just-arrived officer. The officer sees him carrying the burglar's gun and shoots him dead. Sixth Circuit: Qualified immunity. (The burglar is convicted of murder for the man's death.)
- Man menaces his girlfriend with a baseball bat, flees to his parents' house. When nobody responds to knocks at the door, police obtain search and arrest warrants. SWAT raids the home, ignites flash-bang grenade. Sixth Circuit: "Heavy-handed and intrusive" but not a violation of clearly established law.
- Since at least 1999, man has run a barbershop in his Franklin, Tenn., home. New neighbors move in across the street in 2007, want the shop closed. Does the city's failure to shut it down amount to an unconstitutional taking of the neighbors' property? Such a claim must be raised in state court first, says the Sixth Circuit.
- Allegation: Pueblo, Colo., officer driving home from shift in personal vehicle (still in uniform) suspects motorist who sped past is intoxicated, follows the motorist. The officer drives onto private property, attempts to detain the motorist, and dials 911. The motorist and the officer exchange gunfire; neither are hit. The motorist flees and is found dead the next morning of a self-inflicted gunshot wound (unclear if intentional). Can the motorist's family sue the officer? District court: Even assuming the officer violated the Fourth Amendment by entering the property and seizing the motorist, her actions did not foreseeably cause the motorist's death. Tenth Circuit: That's so, but the case should not have been dismissed.
- Guilford County, N.C., officer (patrolling area purportedly at risk of burglary) sees vehicle with an open door down a 150-yard driveway, decides to take a closer look. He runs the vehicle's tags and notes that they don't match the address for the home; he approaches the house, which shows no signs of forced entry. The vehicle owner's papers are in order. Yikes! The officer smells pot. North Carolina court: Suppress the evidence.
- Oregon Board of Psychologist Examiners: Man with master's degree in psychology and a license to practice as a "psychologist associate" tried to mislead the public into thinking he had a doctorate by putting the apparently novel abbreviation "PsyA" on his letterhead, amongst other trickery. Administrative law judge: Which had a "serious detrimental effect on the health and safety of the public." So $10K fine and license suspended for one month. Oregon court: He doesn't seem to have misled anyone on this record.
Until this month, the Alabama Ethics Commission required many people who wanted to speak to state officials about legislation to travel to Montgomery for a one-hour, in-person ethics class (held only four times per year). For Maggie Ellinger-Locke, who works in D.C. as legislative counsel to the Marijuana Policy Project, that meant an 800-mile round-trip flight just so she could talk to Alabama legislators on the phone for a few hours each year. An unconstitutional infringement on her right to petition? Maggie and MPP thought so, so they teamed up with IJ to challenge the rule. Last week, the commission agreed to offer the training online. Click here to read more. (The recently resigned Gov. Robert Bentley took a similar course, so there is some question about the effectiveness of the approach.)