The Volokh Conspiracy

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Short Circuit: A roundup of recent federal court decisions


(Here is the latest edition of the Institute for Justice's weekly Short Circuit newsletter, written by John Ross.)

Last week, Connecticut became the 14th state to require a criminal conviction before police and prosecutors can forfeit the accused's property. IJ Communications Associate Nick Sibilla has the story.

  • New York state assemblyman representing Brooklyn accepts bribes from undercover FBI agents in return for offers to secure permit approvals for carnival, zoning changes for hospital redevelopment. He also claims reimbursements for travel to Albany at times when he was in fact in NYC meeting with the agents. Second Circuit: Though the Supreme Court has since narrowed the definition of "official acts" that trigger the bribery statute, the assemblyman's conviction stands.
  • New York state assemblyman representing Manhattan secures state funding for doctor's mesothelioma research, as well as jobs for the doc's children, after the doc refers patients to law firm specializing in mesothelioma claims, which pays the assemblyman $3 million for the referrals. Second Circuit: New trial. The assemblyman's conviction cannot stand in light of the new Supreme Court precedent mentioned above.
  • Jury in civil case clears Suffolk County, N.Y., cop who shot, killed unarmed man in bedroom. Second Circuit: New trial. Jury instructions about police deadly force must be framed in exclusive terms like "deadly force is unreasonable unless" cop had probable cause. Dissent: Other circuits and SCOTUS say there's no special deadly force standard. Besides, these instructions met even our tough standard because the jury focused on probable cause.
  • Philly cops manhandle plaintiffs who were trying to record police activity in public. Third Circuit: There is officially a First Amendment right to publicly record the police, but these cops get qualified immunity because not every reasonable cop at the time of the manhandling would have known that. Dissent: Of course they knew; there should be no qualified immunity here.
  • Prior to the start of public meetings, Rowan County, N.C., commissioners deliver (usually Christian) prayers, invite attendees to stand and bow their heads. Fourth Circuit (2016): Which does not violate the Establishment Clause. Fourth Circuit (sitting en banc): No, it does. Dissent: Such prayers are part of our civic fabric, and SCOTUS has upheld them so long as there is no discrimination against non-Christians, which there is no evidence of here.
  • Allegation: Though McKinney, Tex., officers had plenty of opportunity to detain plaintiff's adult son without violence, they chose to send in SWAT, who detonated flash-bang grenades (setting plaintiff's house on fire and ripping a hole in a wall) and shot plaintiff in the hand. The late-night raid was retaliation; plaintiff had previously filed a civil-rights suit against the police. Fifth Circuit: He can't sue the officers or the city.
  • Paranoid schizophrenic leads San Antonio, Tex., police on 14-mile car chase, only stopping at his mother's house. He resists handcuffing; officers pummel and Tase him, and a dog bites him. He dies. Fifth Circuit: Qualified immunity.
  • Local regulators: FCC rules placing new limits on what kind of exactions we can demand from cable companies (in return for permission to operate) violate the relevant statute. Sixth Circuit: Could be. The FCC needs to explain its reasoning—preferably with greater dispatch than the seven years it took the FCC to respond to one of plaintiffs' petitions.
  • Cincinnati officials: Defendant bank's policy of disregarding code violations on foreclosed homes (when the cost of remedying them exceeds the value of the home) threatens public safety and imposes costs on the city. Sixth Circuit (over a dissent): The city hasn't actually identified any homes that are in dangerous condition, so its common-law nuisance claims are a no-go.
  • Judge Wood of the Seventh Circuit is sick and tired of you people not reading the local rules.
  • Two Chicago police officers are convicted of providing protection for undercover FBI agents posing as drug couriers. Plaintiff: Their 22- and 18-month sentences are unbelievably light (given that they put me away for 10 years on bogus charges). The FBI must honor my open-records requests, which I hope will shed light on the sentencing. Seventh Circuit: Not so.
  • Seventh Circuit (2014): Indiana's right-to-work law, which forbids unions from collecting fees from workers who do not wish to be part of the union, is neither preempted by federal labor law nor an unconstitutional taking. Seventh Circuit (2017): Same deal with Wisconsin's nearly identical law.
  • D.C. Circuit (2016): Congress erred in authorizing Amtrak to regulate its competitor railroads. Eighth Circuit (2017): Without a new congressional mandate, an unrelated federal agency cannot implement the regulation Amtrak was set to impose.
  • The NLRB cannot punish a sandwich-shop franchise for firing six workers who circulated posters intimating the shops' sandwiches were a source of foodborne disease, says the en banc Eighth Circuit.
  • Investigators blame logging company for starting massive 2007 California wildfire. The company settles with the feds for $55 million and 22,500 acres of land. (Prosecutors had been seeking $800 million.) But the state's case unravels after a judge finds evidence was withheld and destroyed, among other misconduct, and orders the state to pay $32 million to the company. Reopen the settlement agreement with the feds? No need, says the Ninth Circuit. Nor did a federal judge need to recuse himself because he allegedly followed one of the prosecutors on Twitter.
  • The heirs of Jewish woman forced to "sell" an Impressionist painting to a Nazi-appointed art appraiser may pursue their suit against a Spanish museum that bought the painting in 1993, says the Ninth Circuit, as it's possible both the museum and a Dutch/Hungarian/Swiss baron who bought it in New York in 1976 knew (or should have known) it was looted. Some hints: It was bought by each for substantially below market value and was lacking nearly all provenance information despite the widely known fact that the Nazis favored this particular painter.
  • Homestead, Fla., police officer arrests citizen who complained about the officer's allegedly reckless driving habits. Later, the citizen surreptitiously records a meeting with internal affairs. Prosecutor: Which is illegal wiretapping. Eleventh Circuit: We need not reach the question of whether the First Amendment protects covert recordings in police stations because the state's wiretapping law doesn't apply here. Dissent: "To avoid deciding a First Amendment issue, the Court violates the Eleventh Amendment."

In 2013, a tax assessor reassessed 43 homes in a Dover, Wis., subdivision and concluded that four had increased in value, while 39 had declined. What a coinkydink! The four homeowners on the hook for a tax increase had all denied the assessor entry into the interior of their homes; the other 39 had let him in. Worse still, Wisconsin law prohibited homeowners who refuse interior inspections from challenging the resulting assessment—but no more. This month, the Wisconsin Supreme Court ruled (over a dissent) that the state cannot force people to waive their Fourth Amendment right against unreasonable searches if they want to challenge an assessment. Click here to read IJ's amicus brief urging that result and arguing that warrantless inspections are not necessary to accurately and uniformly assess property taxes.