The Volokh Conspiracy

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Volokh Conspiracy

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.)

New on the podcast: recording the police in public, recording the police in the police station, and recording the police on your own property.

  • In 1987, Congress banned smoking on airplanes. Does the ban apply to e-cigarettes? It does, says the D.C. Circuit. Dissent: Smoking in 1987 unambiguously meant smoking a tobacco product. Congress should have to pass a new law to ban smoking non-tobacco products.
  • Man bites part of another man's ear off. Chelmsford, Mass., police seize assailant's car during investigation but refuse to release it when they're done, allegedly so as to pressure the mother of his children to cooperate. The impound fees soon exceed the value of the car; the city's towing company keeps it. First Circuit: No Fourth Amendment problem because the initial seizure was valid.
  • Feds prosecute two U.K. citizens for bank fraud, make use of testimony they gave to U.K. authorities on pain of imprisonment. Feds: The Fifth Amendment's protections against compelled testimony n'existent pas when the testimony is compelled by a foreign gov't. Second Circuit: Not so. Convictions overturned. Indictments dismissed.
  • Nassau County, N.Y., police confiscate shotguns and rifles from woman subject to temporary restraining order, decline to return them after the order is dismissed. Second Circuit: She can legally purchase new guns, so why keep her old ones? If the gov't has a good reason, officials must present it at a hearing, which she's been denied until now.
  • Allegation: Seaboard, N.C., police escort three men out of party, do not intervene as mob throws drinks, punches and bashes in the men's windshield. The mob chases them (some cling to their car) as they drive out of the parking lot. An officer follows them as well and shoots, striking the driver in the arm. Fourth Circuit: A jury may think deadly force was not necessary.
  • Maryland property owners: Natural-gas company took more of our land for a pipeline than it told regulators it'd take; it should compensate us based on what it actually took, not on what it said it took. Fourth Circuit: You have to file a separate suit to raise that issue.
  • At 5 a.m., Kent County, Mich., jail staff learn that man arrested that morning for failure to pay child support needs twice-daily doses of anti-seizure medication. The medication does not arrive until 8 p.m., by which time he has died from a seizure. Sixth Circuit: His estate cannot sue the medical staff.
  • Suspected drunk driver leads Munising, Mich., officer on high-speed chase, crashes. Dashcam video shows the suspect exit his car unarmed and take purposeful strides toward the officer, who is pointing a gun at him. The officer initially backs up but shoots, kills the suspect when he gets close. Sixth Circuit (over a dissent): The officer is qualifiedly immune from suit.
  • Detainee at Madison County, Ill., jail writes suicide note accusing guards of refusing to let him see crisis counselors; his suicide attempt leaves him in a vegetative state. Jury: The guards were not deliberately indifferent. Seventh Circuit (over a dissent): New trial. The judge erred in barring video recorded right after the attempt in which another detainee (presumably) corroborates the accusations.
  • The FBI hits tech companies with national security letters demanding certain customer info, forbids the companies to inform customers (or anyone else). Ninth Circuit: There's no First Amendment violation. The speech restriction survives strict scrutiny, and, even if the gag orders constitute prior restraint, a 2015 statutory amendment added necessary procedural safeguards.
  • To ensure the nation's defense, the feds finance molybdenum mining on federal land in New Mexico. And now, says the Tenth Circuit, the feds, as a landowner, may be liable for part of the $1 billion-plus cleanup ordered of the mining company by the EPA.
  • FBI agents take over operation of child-porn website, track down visitors to the site. District court: A magistrate judge in Virginia lacked jurisdiction to grant the FBI a warrant to track a user in Colorado. Tenth Circuit: That could be true, but the agents were entitled to rely on invalid warrant they had reason to believe was valid. No need to suppress the evidence.
  • Police raid Santa Ana, Calif., pot dispensary, point guns at customers and employees, smash the dispensary's video cameras. Yikes! They miss a few, which record some unguarded comments they would not have uttered in public. The officers sue the police department for making use of the recordings during internal investigation (that resulted in charges). California court: The officers did not have a reasonable expectation of privacy during the search.
  • State: Man holding pro-wrestling events in former church building, complete with fog machine and spotlights, is breaking the law because he doesn't have a promoter's license. Man: The wrestling is fake. State: But still covered under the state's Wrestling Act because "participants are engaged in a struggle in the ring." Pennsylvania court: The state may continue its pursuit of a permanent injunction.

To earn a little extra money to see her through retirement, Sally Ladd started a part-time home business helping her neighbors in the Poconos list their properties on vacation-rental websites like Airbnb. Which is unfortunately illegal without a real-estate broker's license, something that would take Ladd over three years to obtain and require her to open a brick-and-mortar office in Pennsylvania—even though nothing she does requires knowledge about buying or selling property. Rather than face jail time or fines, Ladd closed her business. Last week, she filed a constitutional challenge to Pennsylvania's arbitrary restrictions that prevent her from earning an honest living. Click here to read more.