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.)
This week on the podcast: a special show featuring the Harte family, whose home was raided by a SWAT team after police found tea leaves in their trash. Why were police looking in their trash? Because months earlier, they'd visited a garden store. Their attorney, Rob Bernstein of Kirkland & Ellis, joins us as well. Click here for iTunes.
- Citizen investigator: Crooked FBI agent gave mobster (Gregory "The Grim Reaper" Scarpa Sr.) info that he used to murder mob rivals. Even if that info was originally compiled for law enforcement purposes (and so exempt from the Freedom of Information Act), it was used for illegal purposes, and the FBI must turn related records over. D.C. Circuit: Not so.
- Does ought imply can? Both Immanuel Kant and the D.C. Circuit say yes, and the latter vacates a writ of mandamus that the district court issued without expressly considering whether it was even possible for an agency to comply with it. (A dissenting opinion argues that compliance seems plenty possible and there was no need for the lower court to have made an express finding about it.)
- Meat passes government inspection, is sold to middleman. The middleman repackages the meat, and labels it—without the supplier's permission—with the inspection number assigned by the government to the supplier. D.C. Circuit: Which is misleading and unlawful. Dissent: "It seems to me a giant step in the progress of the administrative state to permit agencies to enforce regulations that do not exist."
- In exchange for $4k donation to charity, Lee, Mass., police chief derails prosecution of bed-and-breakfast owners with prostitution side business. The chief pockets the donation. First Circuit: Extortion conviction affirmed.
- Man downloads Uber smartphone app, hails a ride 10 times, files price-fixing class action. (Uber then hires private investigators to dig up "derogatories" on plaintiff.) District court: No arbitration; the clause users agree to is not reasonably conspicuous. Second Circuit: Reversed. You gotta read the fine print.
- Three Buffalo, N.Y., police officers allegedly participate in shooting of arrestee with BB gun. They're indicted and enter a joint defense agreement (JDA), but one decides to plead guilty and testify against the other two. Other two: He can't testify about a conversation we had after the JDA but before he began cooperating with the prosecution. Second Circuit: He can.
- Security guard at nuclear facility allegedly suffers from paranoid delusions, abuses substances. He's fired. Former guard: Which violates the Americans with Disabilities Act. Third Circuit: Nuclear security regulations trump the ADA.
- Allegation: Zoo in Cherokee, N.C., keeps grizzly bears in concrete pits without shade or vegetation. Zoo: We only call them grizzlies for advertising purposes; they are actually European brown bears and so are unprotected by the Endangered Species Act. Fourth Circuit: They're grizzlies, and (over a dissent) the zoo's husbandry practices could be unlawful.
- On visa application, Algerian immigrant, a North Carolina cabbie, reports he's never been cited, arrested or charged. Yikes! He's got some traffic tickets. (Also, he apparently has Islamic State propaganda videos posted on his Facebook page.) Feds: Deport him. Fourth Circuit: The trial judge made impermissible comments to the jury about the visa program. Conviction vacated.
- Orthodox Jewish family sues school board under the Individuals with Disabilities Education Act (IDEA), alleging that the individualized education program developed for their child with Down syndrome is insufficient because it does not provide religious or cultural instruction. Fourth Circuit: The secular education offered was all the IDEA required.
- Professor: The major problem with slavery was that it violated slaves' right of free association to not " 'associate' with their masters." Other than that it wasn't so bad. New York Times: Professor says slavery wasn't so bad. Fifth Circuit (2016): Could be defamation. Fifth Circuit (2017): Still could be.
- Allegation: Suspected drunk driver (a retired cop and disabled veteran) declines to walk toward Round Rock, Tex., officers, attempts to pull his (recently operated on) arm away from an officer's grasp. They take him to ground, administer knee strikes, break his back. Police: We were worried he might stagger onto the road, so we had to subdue him. Fifth Circuit (over a dissent): No qualified immunity.
- Blood on the shirt of Battle Creek, Mich., bartender stabbed to death in 1995 does not match the victim or the defendant; blood on the bar matches the defendant, as well as millions of other people. The jury convicts. Sixth Circuit: Release the defendant unconditionally.
- Attorney: North Dakota's bar association fees automatically include funding for non-germane political activity, forcing me to take a manual deduction if I want to opt out of the bar's political speech. But the First Amendment doesn't allow them to put the burden of opting out of these activities on me; they should be required to ask me if I want to opt in. Eighth Circuit: Dude, you're the one filling out the form and writing the check. If you write the check for the full amount, that's opting in.
- Motel operator: Beatrice, Neb., officials condemned motel for code violations that weren't all that serious (in the view of the city's building inspector)—all as part of an evil scheme of vengeance for the operator's protected free speech. Eighth Circuit: Evil scheme or no, those were real code violations, so the officials all have qualified immunity.
- Citizens would like to hold signs decrying homosexuality at military funerals, but Nebraska law forbids them from protesting within a city block. A constitutional violation? No. "The First Amendment guarantees free speech, not forced listeners," says the Eighth Circuit; the law "strikes a balance between these competing interests of law-abiding speakers and unwilling listeners."
- Online white pages company (that also posts credit scores, among other things) inaccurately listed man's age, marital status and other background data. Man: Which harmed my employment prospects and caused me anxiety. Ninth Circuit (on remand from the Supremes): He can sue.
- Man sentenced to death by state court for 1999 murder outside Tulsa, Okla. But wait! He's an Indian (Muscogee (Creek) Nation), and the murder happened in Indian country—shouldn't he have been tried in federal, not state, court? Tenth Circuit: Indeed. Any land within the 1866 boundaries of the Creek Nation is Indian country, including most of present-day Oklahoma (even land owned by non-Indians) and the location of this particular murder. Conviction tossed, and it's up to the feds to prosecute him.
When the Supreme Court ruled, in 1976, that bank records are categorically excluded from Fourth Amendment protection, the justices envisioned the piecemeal collection of records to assist criminal prosecutions. Today, that ruling- combined with civil forfeiture laws- has given federal agents free rein to troll virtually every American's bank account looking for property to forfeit—without warrants and without criminal charges. In a recent amicus brief, IJ urges the Supreme Court to consider this history when it decides next year whether cellphone records (so-called "cell site-location data") are protected by the Fourth Amendment.