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.)

New on the podcast: thought crime, "buying food" at Costco, and Wyoming's ag-gag law.

  • Two union leaders who threatened to picket Boston-area businesses aren't guilty of extortion, says the First Circuit, as peaceful picketing is legitimate labor activity and they were seeking real jobs (not payment for fictitious jobs). However, one of the defendants was prohibited by law from being a union rep (because of his criminal record, which includes armed bank robbery), so the pair's convictions related to that stand.
  • Employees of a Chinese construction company (perhaps embroiled in a forced-labor imbroglio?) must show up to deposition, says the Second Circuit. They don't have diplomatic immunity because they did not register with the State Department.
  • Defendant accused of stealing federal funds while deployed to Afghanistan is prevented from selling his home, which was not purchased with stolen funds, in case prosecutors want to forfeit it later—if and when they get a conviction. Fourth Circuit (en banc): No other circuit allows the pretrial seizure of untainted assets, and we were wrong to have allowed it up until now.
  • Law professor gets pay raise of $666. Did school officials purposefully invoke the "mark of the beast" to punish him for his union activities? Heavens no, says the Sixth Circuit.
  • Naked from the waist down, mentally ill man throws flower pot through neighbor's window, brandishes a garden hose with a metal nozzle and a garden basket at Hamilton County, Ohio, police. The officers Tase him, break his ribs after he declines to cooperate, struggles. Coroner: He died a natural death. Sixth Circuit (over a dissent): His wife can't sue the police.
  • Genoa Township, Ohio, man kills intruder who just murdered his wife, tells police he doesn't know the intruder. Police: Wasn't he the best man at your wedding? And didn't two of your previous wives die in home invasions? Jury: The man hired his friend to murder his wife and then murdered the friend for seeking a bigger cut of the insurance proceeds. Sixth Circuit: No reason to reconsider his death sentence.
  • Allegation: Bay City, Mich., officers barge into man's home, knocking him over, to get to his son, who declined to go outside and instead retreated into the house to call his lawyer. Police lie in their reports, resulting in the father getting charged with a felony for obstructing them. Sixth Circuit: Can't sue over that. But the family's claim against one officer for entering the home without a warrant (or any pressing need) can go to a jury.
  • Doctor injects patient (who is suffocating but refusing a breathing tube) with drug to make him pass out, ease his pain. The patient dies as he's being injected. Illinois officials yank the doctor's license—a decision that is vacated repeatedly (four times over the course of 15 years) in state court. Finally, they agree to reinstate him if he goes back to medical school. Seventh Circuit: The doc's suit seeking damages may proceed.
  • Police officer sucker punches compliant drug suspect, continues to beat him while he continues to comply, even after he's handcuffed. Jury: Excessive force. Seventh Circuit: Affirmed. The trial judge did not err in refusing to allow another officer to testify that such treatment of suspects is common practice in Chicago.
  • Distress call is sent out after engine on man's fishing boat dies. The Coast Guard obligingly tows the man back to Oxnard, Calif., harbor, where eight officers are waiting to detain him on suspicion of being an illegal alien, which it turns out he is. Ninth Circuit: Boating while Latino does not give rise to probable cause; terminate the removal proceedings.
  • Deaf man is arrested, taken to Multnomah County, Ore., jail where the only means of communicating with the outside world is a telephone he cannot use. Corrections staff deny repeated requests for a "teletypewriter," a kind of telephone for the deaf. Ninth Circuit: Which may have violated the Americans with Disabilities Act. Remand for trial.
  • Nosy neighbor complains to Rexburg, Idaho, authorities about the state of man's property, which contains over 3,400 containers of corrosive and flammable material—an "indescribable mess" that takes the EPA two weeks to clean up. Ninth Circuit: Man's conviction and 46-month sentence affirmed.
  • District court: No qualified immunity for police officer who shot and killed a suspect who declined to drop a handgun (but was not pointing it at the officer) and was backing away from the officers (from whom he was separated by a chain-link fence). Tenth Circuit: Reversed.
  • Auto mechanics: Insurance companies tell us what they're willing to pay for repair jobs and steer customers away if we demand more. Eleventh Circuit: Could be an antitrust violation. Dissent: "I do not believe that a complaint merely alleging several common (and obvious) industry practices should proceed directly past a motion to dismiss and into the expensive and settlement-inducing quagmire of antitrust discovery."

Customs and Border Protection (CBP) agents seized Gerardo Serrano's truck as he tried to cross the border into Mexico. Serrano's crime? Nothing. He's never been charged. But agents did find five low-caliber bullets in his center console (which Serrano, a U.S. citizen with a concealed-carry permit, had forgotten were even there). According to CBP, this means the gov't can forfeit the truck because Serrano was transporting "munitions of war." To contest the forfeiture, Serrano posted a bond of over $3,800, but it's been two years and he is still waiting on a hearing—and making monthly loan payments on the truck. Last week, Serrano and IJ launched a class action demanding the agency provide a prompt hearing before a judge whenever it seizes property. Read more about the case here.