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: the mark of the beast on campus, defamation on campus and due process on campus. Click here for iTunes.

  • New trial for former New York state senate majority leader and his son, says the 2nd Circuit. Could be they were corrupt, but the jury that convicted them in 2015 was given an overbroad definition of what "official acts" might fall afoul of the law. (In 2016, the Supreme Court vacated the conviction of former Virginia governor Bob McDonnell over said overbroad definition, a result that controls this case.)
  • After the housing market collapse, the feds brought 16 enforcement actions (in the Southern District of New York) against financial institutions that sold certain mortgage-backed securities to Freddie Mac and Fannie Mae and allegedly overstated their quality; 15 defendants settle, paying a total of $20 billion. Second Circuit: The 16th failed to disclose pertinent info to Fannie and Freddie, so the remaining defendant's sale of mortgage-backed securities is reversed, and the $806 million purchase price must be paid back.
  • Federal law: States are allowed to remove convicted felons from their voting rolls. Plaintiff: That means states have to remove them. Third Circuit: Your argument "mangles the statute beyond recognition."
  • University student accuses another student of sexual assault, which he denies. All evidence is hearsay. University: He's suspended for a year. Sixth Circuit: He can go back to school while the case proceeds. He should have been able to cross-examine the accuser (by submitting questions to the disciplinary panel, which would ask them of the accuser if deemed relevant).
  • Illinois's "full-slate requirement" bars the Libertarian Party from running candidate for county auditor without also fielding candidates for other positions on the ballot, including coroner and school superintendent. Seventh Circuit: The rule excessively burdens ballot access for "minor" political parties ("incentivizing [them] to manufacture frivolous candidacies as a means to an end") and violates the First Amendment.
  • Campbell, Wis., police chief persuades town officials to ban private signs on overpass lest they distract drivers below. Annoyed with protesters continuing to protest there and for posting videos online of police removing them, the chief posts protester's name and email to porn, gay dating websites. Seventh Circuit: The sign ban stands for the most part.
  • Man is convicted of murder and sentenced to death, although bloody shoe prints leading away from the body clearly are not his. Ninth Circuit: Prosecutors violated the Constitution when they suggested the shoe prints could have been left by a paramedic, while knowing full well they were already there when the police arrived.
  • Allegation: Sonoma County, Calif., police see 13-year-old walking away from them holding an AK-47 with the muzzle pointed down. They order him to drop the gun; an officer shoots him dead as he turns toward them. Turns out it was a toy gun. Ninth Circuit (over a dissent): No qualified immunity at this point; a trial is necessary.
  • Man believes he is having sex with 14-year-old in Cambodia, brings video of it to the United States. He's caught. Man: Turns out I was mistaken about her age; she was an adult when the video was recorded. Ninth Circuit: Even if that's so, you still attempted to bring child porn into the states. Conviction affirmed.
  • Judge has a moment of "revelation" and grants summary judgment on grounds not raised by the parties (without telling the parties the plan). The 10th Circuit reveals that he's not allowed to do that.
  • "This is a tax case. Fear not, keep reading," says the 11th Circuit, concluding that the Internal Revenue Service did not violate the Constitution by denying deduction claimed by gay man for in vitro fertilization as a medical expense.
  • Man kidnaps child from Bay Minette, Ala., day care after robbery attempt, is given two life sentences. (The child is unharmed.) Man: As the state concedes, my crime had nothing to do with sex. I shouldn't be classified as a sex offender and forced into therapy. Eleventh Circuit: State law says kidnapping a minor is a sex offense, so tough.
  • And in en banc news, the D.C. Circuit will not reconsider its ruling that D.C.'s near-ban on guns, whereby carrying in public is prohibited unless the police chief perceives an individual has a good reason for it, violates the Second Amendment.

When Jack Roundtree pulled his food truck into Green Cove Springs, Fla., after Hurricane Irma, he intended to serve lunch to hungry residents with few other options and even give away his BBQ for free to utility workers. Sadly, officials shut him down because he had not first obtained a permit from city hall, which was shuttered. Ridiculous! But it's also sadly common for cities to force mobile food vendors to jump through crazy hoops. In Baltimore, for instance, food trucks can lose their license if they park within 300 feet of a restaurant that sells the same type of food once too often. What counts as the same? It's frustratingly open to interpretation. Fortunately, Baltimore food-truck owners are fighting back, and last week at trial they argued that the only reason for the rule is to protect restaurants from honest competition. Read more about the case here.