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.)
New York City law permits the forfeiture of unlicensed for-hire vehicles from repeat offenders. But it turns out that for years inspectors hadn't been bothering to verify suspected violators' citation histories, and first-time offenders (or even entirely innocent people) routinely had their cars seized. Which violates the Fourth Amendment, says a federal judge. Click here for more.
- Journalist: After 9/11, homeland security officials were tricked by con artist who said his software could uncover terrorist plots, resulting in the grounding of dozens of commercial flights over nonexistent threats. Con artist: Defamation! D.C. Circuit: Nope.
- Company that owns aging bridge that connects Detroit to Canada plans new bridge. Yikes! Michigan and Canada officials also plan new bridge nearby. Company: Which is a bridge too far. The gov'ts cannot proceed. D.C. Circuit: They can.
- Allegation: Haywood County, N.C., officers responding to domestic disturbance call arrive at a home, watch as father strikes daughter with handgun and then steps off porch toward officers with the muzzle pointed at the ground. Without saying a word, the officers shoot him dead. Fourth Circuit (over a dissent): No qualified immunity.
- Pilot flies glider plane over nuclear plant. It's not restricted airspace, but Darlington County, S.C., sheriff jails him overnight (after being told by the FAA that the pilot had done nothing wrong) and charges him with breach of the peace. In exchange for dismissal, the pilot waives civil claims against the sheriff. Pilot: My lawyer lied to me, browbeat me into doing that. I want to file civil claims against the sheriff. Fourth Circuit: No can sue.
- Allegation: As Kershaw County, S.C., officer leans into vehicle, drug suspect drives off. The officer shoots him in the back, killing him. Police: Sorry, but our patrol cars didn't have dashcam video at the time. Narrator: They had cameras. Police: But the one in question was inoperable. Fourth Circuit: Qualified immunity, but the gov't must pay legal fees plaintiff accrued trying to obtain video ($11.5k).
- Locomotive engineer with anxiety, depression misses too many days of work, is fired. Dep't of Labor review board: Which was unlawful. Sixth Circuit (punnily): The board's interpretation of the relevant statute strands "the caboose from its engine." The statute doesn't apply to off-duty injuries. Concurrence: True, but there's no need to beat the board up for trying to create a circuit split on the question.
- Man writes satiric erotic novel, "A Gronk to Remember." For cover, he selects photo from the Internet of couple embracing. Couple: We did not give permission for this use of our engagement photo. Sixth Circuit: Which is not Amazon or other booksellers' problem.
- Lebanese immigrant, a U.S. citizen, sues over being placed on No Fly List, is removed from it. Is his case now moot? Immigrant: I'm still regularly getting hassled, so no. Sixth Circuit: If you think you're on some other list, you have to file a new suit.
- In 2002, St. Louis officer robs, frames man—part of a pattern of misconduct for which the officer goes to prison. The man sues, obtains $1.5mil judgment against the officer. Must the city pay? Eighth Circuit: Yup, plus attorney's fees.
- SWAT team enters Hiram, Ga., home, shoots drug suspect's husband dead. Officers: He was moving towards us aggressively. Eleventh Circuit: There is no substantial evidence to the contrary; regrettably, the only non-police eyewitness is dead. Qualified immunity. Dissent: The fact that he was shot in the back is pretty good evidence to the contrary.
- On phone app, middle school student draws picture of male genitalia over photo of his friend's face. He's convicted for breach of the peace, sentenced to probation, therapy, eight hours of work crew. Colorado appeals court (over a dissent): Reversed. Colorado Supreme Court: Cert denied.
- Jogger pauses on Hippie Hill, draws the attention of San Francisco police who suspect drug activity (in part because he is clean cut, which is consistent with being a recent parolee). He resumes running, is ordered to the ground at gunpoint, detained for six hours, cited for evading arrest. No drugs found but he loses his job as a trainee San Francisco police officer. California appeals court: No need to reconsider his $2.6 million award for false arrest, other claims.
- Allegation: At instruction of superior, San Bernardino social worker provides incomplete, doctored evidence to court. She retains an outside attorney, alerts the court to the misconduct, is fired for disclosing confidential information to her attorney. Whistleblower retaliation? California appeals court: Could be. It's disturbing that the gov't hasn't disputed her claim that evidence was manipulated.
Police officer sneaks up driveway and removes cover from man's motorcycle, so as to ascertain its vehicle identification number. Did the officer need a warrant? The Virginia Supreme Court said no, but in an amicus brief, IJ argues SCOTUS should reverse. Among other things, one's driveway is not an "open field," and so that exception to the Fourth Amendment is unavailing. Interestingly, the open fields doctrine, born out of a 1920s whiskey bootlegger case, is itself based on Justice Oliver Wendell Holmes's misreading of Blackstone. For more on that, click here.