The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice written by John Ross:
Friends, state laws restricting homemade (or "cottage") food sales may be needlessly hindering entrepreneurship, particularly among women in rural, lower-income households. That's according to Flour Power, a first-of-its-kind report on the industry from IJ Research Analyst Jennifer McDonald. Click here to read it.
· FBI agents impersonate journalist, trick bomb-threat suspect into revealing himself. Journalists: That's a concerning tactic. Tell us more. FBI: We have conducted a comprehensive search of the relevant archives and are unable to find more. D.C. Circuit: The FBI Director himself said there was more in a letter to The New York Times. Search again.
· Wholesaler sells imported versions of FDA-approved medicine, medical devices; is convicted of misbranding them as FDA-approved. Second Circuit: New trial. The wholesaler should have been able to tell the jury that a lawyer (a former prosecutor with experience in FDA compliance) advised them they weren't breaking the law.
· Former Honduran soldier enters the U.S. illegally. Back in Honduras, gangsters—whose compatriots the soldier once helped imprison—assault his family and friends in effort to find him. BIA: He missed the deadline to petition for asylum. Send him back. Fourth Circuit: Not so fast. The escalating violence back home renders the deadline flexible.
· Man is convicted of rape in 1986 after victim identifies him (though perhaps not reliably). Yikes! In 2009, it emerges that Detroit crime lab tech goofed up forensic test. At trial, she told jurors that testing did not exclude him; she now says he could not have been the perpetrator. Sixth Circuit: That's not new evidence; the foul-up could have been discovered at trial. Habeas denied. (The man has been eligible for parole since 1994 but maintains his innocence and so won't be released.)
· Former employee programs ATMs to dispense $20 bills while only debiting $1 from bank account, steals $600k from the "infelicitously named SafeCash Systems." He's caught. But wait! The company takes the ATMs out of service (because they don't comply with new federal rules on accessibility for blind customers). Destruction of potentially exculpatory evidence? Sixth Circuit: Convictions and one-year sentence affirmed.
· Low-IQ teenager confesses to grisly murder (the subject of Netflix's Making a Murderer documentary). Suppress the confession? No need, says the full Seventh Circuit; though many worry the investigators' tactics can elicit false confessions, the Supreme Court hasn't condemned said tactics. Dissent: A travesty. Investigators fed him the details they wanted him to admit to and harried him till he did. Another dissent: The courts need to start treating the risk of false confessions more seriously; we know of at least 227 of them.
· One "might be forgiven for thinking there is not much question about whether attempted murder and attempted armed robbery are violent crimes," writes Judge Hamilton of the Seventh Circuit, but it ain't so—at least when it comes to sentencing.
· Pine Lawn, Mo. cop displays incumbent mayor's campaign sign in convenience store window over the objections of the owner; the opposing candidate removes the sign (which has her mugshot from a past arrest on it). The officer threatens to frame the store owner for drug possession if he does not help frame the opposing candidate for theft; he then arrests the candidate, has local TV film a perp walk. Eighth Circuit: The officer's conviction is affirmed. (Related: He was not a good cop.)
· To promote student achievement, prevent bullying, and instill numerous moral virtues, Reno, Nev. elementary school requires students to wear uniforms with motto "Tomorrow's Leaders." Parents: Which is compelled speech. Ninth Circuit: The motto requirement does indeed violate the First Amendment, though we'd give it a pass but for precedent we are bound to follow.
· Helena, Okla. prison kicks inmate out of kosher diet program because staff say he ate a non-kosher meal, which is grounds for suspension from the special meal program. Inmate: I took no cheat day; the staff retaliated against me because I annoyed them, and supervisors declined to review video that would have cleared me. Tenth Circuit: This suit should not have been dismissed.
· Liquor store owner sues Marathon, Fla. officials in state court for misusing their regulatory powers to devalue the property. The city removes the case to federal court. Eleventh Circuit: Ah, but federal courts cannot consider regulatory takings claims unless the state court has first issued an opinion, so case dismissed. Try suing in state court.
· Georgia man pawns his car, files for bankruptcy shortly after. Georgia law says the pawnbroker can keep the car; federal law says the bankruptcy court can "modify" a creditor's rights to such an asset. Eleventh Circuit (over a troubled dissent): "For better or worse," state law controls, and the pawnbroker now owns the car.
· Federal officials decline to register trademark claimed by clothing company "fuct" because it is the phonetic equivalent of a scandalous term. Indeed, the company's products feature "hellacious or apocalyptic events" and "other imagery lacking in taste." Federal Circuit: Which is unconstitutional in light of the Supreme Court's recent ruling in favor of "The Slants."
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