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.)
- The founder of Silk Road, an online marketplace that facilitated illegal drug sales, says the site made the drug trade safer (no need to buy in person from sketchy dealers) and that transactions on the site were a "victory over the oppressor" (the nation's drug laws). Second Circuit: Which bespeaks an elevated risk of recidivism that, among other things, justifies his life sentence without possibility of parole.
- Philadelphia taxi cab operators sue Uber, claiming Uber's disregard for local licensing laws constitutes "unfair competition." Third Circuit: Failing to comply with licensing restrictions may be illegal, but it is not unfair competition.
- Over the course of a month in 2012, a Lynchburg, Va., man attempts to buy $500,000 of cocaine from DEA informant; he's sentenced to over 10 years in prison. Two years later, the government is back with a new indictment: He ran a cocaine trafficking ring in Lynchburg that distributed over 1,000 kilograms of cocaine over a 14-year span. Fourth Circuit: Double jeopardy.
- A search of a Columbia, S.C., home yields marijuana and other contraband behind a deadbolted door. A jury convicts defendant, one of four roommates, of constructive possession of the contraband. Fourth Circuit: Conviction overturned. There was insufficient evidence that he had access to the locked room, and the jury should not have heard about his past drug offenses. Dissent: "The dukes and earls of the appellate kingdom should learn to respect a trial court's job."
- Fifth Circuit (2014): Sex offender and his family have standing to challenge Lewisville, Tex., ordinance barring him from living within 1,500 feet of a place where "children commonly gather," essentially putting the whole city off limits. Fifth Circuit (2017): But their constitutional arguments fail.
- Government: We can condition our waiver of sovereign immunity on anything we want, including taking away your right to a jury trial. Property owners: But the Fifth Amendment guarantees us just compensation, so you had no choice but to waive your sovereign immunity! Sixth Circuit: We're going with "they can do anything they want."
- Uniformed, off-duty Detroit cop runs a red light. A Farmington Hills, Mich., police officer turns on his emergency lights, but the Detroit cop does not pull over for 12 seconds (which allows him to reach his home). The two argue; the Detroit cop is tased and arrested. Sixth Circuit: The Detroit cop was mostly in the wrong, but he can press his state law assault-and-battery claim against the Farmington Hills cop, who displayed "remarkable belligerence" from the get-go.
- Kenosha, Wis., school officials bar transgender teen from using the boys' restrooms at his high school unless he undergoes surgical transition, a procedure prohibited for those under 18. Seventh Circuit: He may use the boys' room while his suit against the school district proceeds.
- Allegation: Off-duty policeman working security at Little Rock, Ark., mall pepper sprays angry, argumentative would-be shoplifter of shorts (not to be confused with marocains). A struggle ensues, which ends with the shoplifter handcuffed and compliant. The officer chokes him while escorting him off to the store's security room. Officer: He wasn't compliant, and I didn't choke him. Eighth Circuit: Qualified immunity for the pepper spray. The choking allegation goes to a jury.
- The Southern District of California's former policy of requiring pretrial detainees to appear before the court shackled hand and foot—a policy that resulted in the shackling of a blind man, a woman with a broken wrist, and a wheelchair-bound woman in "dire and deteriorating health"—is unconstitutional, says an en banc panel of the Ninth Circuit (over a dissent).
- Chronic alcoholic seeks to avoid deportation, but the law makes deportation mandatory for "habitual drunkard[s]" as they lack "good moral character." Ninth Circuit: That's irrational; alcoholism is a disease. En Banc Court: Perfectly rational; drunkards endanger public safety. Kozinski, J., concurring: This is the immigration sphere, so rationality isn't required. Watford, J., concurring: Rational to think that most drunkards do in fact lack moral character. Dissent: While this individual is an alcoholic, there was insufficient evidence that he was also a habitual drunkard.
- Nevada trooper testifies that it's "common knowledge" that police may use administrative inspection powers to investigate criminal activity without reasonable suspicion or probable cause. The Ninth Circuit says it's common knowledge that it's unconstitutional.
- Can California impose a $5 fee on every legal acquisition of a firearm in order to cover the costs of investigating and prosecuting those persons who, after legally acquiring a firearm, become prohibited from possessing one? Sure thing, says the Ninth Circuit.
- Allegation: Prosecutors successfully sought to have Atlanta's crime-lab director fired after he testified for the defense in an out-of-state case. Unlawful retaliation? The prosecutors are entitled to qualified immunity, says the Eleventh Circuit.
Selling home-made baked goods is now legal in 49 states thanks to a Wisconsin trial court's ruling that the state's ban on such sales is unconstitutional. Under the ban, home bakers were required to spend tens of thousands of dollars to rent or build a commercial-grade kitchen before selling cookies, cakes, muffins, and other treats—despite no report of anyone ever getting sick in the 48 states with no such requirement. Indeed, Judge Duane Jorgensen of the Lafayette Circuit Court found that, rather than protecting the public from harm, the ban only protected commercial bakers from competition. The decision (pending appeal) means that New Jersey remains the only state that restricts its residents' liberty in this way. Read more here.