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.)
Over at the worthy Simple Justice blog, IJ President Scott Bullock expounds on his life (born at Gitmo!) and times (fighting the good fight against eminent domain abuse). Click here to read the interview.
- The FAA lacks the authority to impose rule requiring recreational drone users to register with agency (on pain of up to three years in prison), says the D.C. Circuit, handing a win over the DOJ to a pro se petitioner.
- The NYPD forces two officers falsely accused by their exes of alcoholism into rehab. A violation of NYC's Human Rights Law? NYPD: The law protects recovering alcoholics—not people falsely perceived to be alcoholics—from discrimination. Second Circuit: The state's high court should weigh in.
- Sitting en banc, the Fourth Circuit last week upheld a preliminary injunction against the Trump ban on immigration from six predominantly Muslim countries, declining the government's invitation to "ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution's separation of powers." Says the court, "The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution."
- It's certainly plausible that the NSA has intercepted communications between Wikimedia users in the U.S. and abroad, says the Fourth Circuit, so the open-source content provider has standing to challenge the NSA's surveillance practices. Partial dissent: The other eight plaintiffs have standing, too.
- Allegation: Lawyer representing two defendants involved in 1987 altercation secures deal whereby one pleads guilty to attempted murder and the other goes free. After peeling away layers of procedural complexities, the Fourth Circuit says it's possible this was so bad a deal for the first defendant (who went on to run a major heroin trafficking operation in Baltimore, earning himself a now-commuted 50-year sentence) as to be unconstitutional.
- Law enforcement locate and apprehend wanted man near Victoria, Tex., thanks to real-time data gleaned from his cellphone. Fifth Circuit: One doesn't have a reasonable expectation of privacy in such data; no Fourth Amendment violation here.
- Bossier Parish, La., sheriff fires two officers who swapped wives, families, houses without getting divorces. Fifth Circuit: Which did not violate the officers' constitutional rights.
- Clark County, Ky., officer obtains warrant to search man's computer and other devices for child porn. The man is arrested and sits in jail for over a year, but police do not search the seized devices, which do not in fact contain child porn. Sixth Circuit: The man may sue the officer.
- Upon learning Wayne County, Mich., officer intends to impound his car (on suspicion he violated an ordinance punishable by citation and not impoundment), driver drives off, dragging the officer, who had grabbed ahold of the steering wheel. The officer shoots the driver dead. Sixth Circuit: Qualified immunity. Dissent: A senseless killing; the officer put himself in a dangerous situation.
- Galesburg, Ill., officer reviews Amtrak rail bookings every day in search of suspicious travelers. A woman who had been arrested seven years prior (he doesn't know whether she was convicted) who purchased a one-way roomette ticket from Flagstaff, Ariz., to Toledo, Ohio, two days before the trip meets his criteria. A search of her baggage yields contraband. Seventh Circuit: No need to suppress the evidence.
- Minnesota woman's son is diagnosed with gender dysphoria, but her health insurance does not cover the relevant medications or gender reassignment surgery. Sex discrimination prohibited by the Affordable Care Act? Her claim against the insurance company was improperly dismissed, says two-thirds of an Eighth Circuit panel.
- A woman who dressed up as a "sexy cop" and posed for pictures with passersby in exchange for tips on the Las Vegas Strip is arrested for conducting business without a license. A violation of her First Amendment rights? A jury should decide, says the Ninth Circuit.
- Georgia law does not permit negligence suits against dogs, so Draco, a Gwinnett County police canine, is off the hook for biting man accused of stealing a TV from his ex's apartment, says the Eleventh Circuit. Separately, the officers who stood by as Draco permanently damaged the man's arm are entitled to qualified immunity.
- Man drives to several vending machines, tries to access coin vaults, manages to steal only 50 cents over the course of a week. Illinois appeals court: Forfeiture of his car would be an excessive fine.
- Man attempts to pay 2013 speeding ticket, but the appropriate court has shut down and officials, despite repeated inquiries, do not reveal how to proceed. He does not receive notice that his license will be suspended (for failure to pay the ticket); he is later convicted for driving on a suspended license. Pennsylvania appeals court: It's a valid conviction, but given the circumstances, maybe the trial court will let him challenge the license suspension.
- And in en banc news, the Second Circuit will consider whether Title VII prohibits employers from discriminating on the basis of sexual orientation. The Eleventh Circuit will not reconsider whether a just-executed inmate's lawyer should be/have been allowed to have a cellphone at his execution, drawing a dissent from Judge Martin.
Back in 2010, Philadelphia police caught Elizabeth Young's adult son selling marijuana. Young, now 71, was never charged with a crime (indeed, she was on bed rest recovering from blood clots at the time of her son's arrest), but prosecutors moved to forfeit her home and car. Last week, the Pennsylvania Supreme Court ruled that the trial court, which allowed the forfeiture, "did not engage in the probing inquiry necessary before coming to a full and reasoned conclusion." Young will get a new trial on her two defenses: that the loss of her property would be an unconstitutionally excessive fine and that she did not consent to her son's activities. Click here to read IJ's amicus brief, urging the court to consider law enforcement's incentive to forfeit property (they keep 100 percent of the proceeds).