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.
This week on the podcast: a deep dive into the D.C. Circuit featuring special guests Professor Aaron Nielson, a wanted "Anti-Administrativist" and Sage of the C.A.D.C.; and Cate Stetson, Hogan Lovells' legendary appellate litigator who is one of the D.C. Circuit's most frequent (and successful) litigators. Hear Aaron and Cate discuss what makes the D.C. Circuit unique and talk about big cases coming out of the court. Plus: a lightning round of trivia about the current judges. Click here for Android. Click here for iTunes.
- New York officials use highway toll funds to pay for upkeep of the state's canal system, a scenic byway that no longer supports commercial traffic. Commercial truckers: The money should go to the roads. Second Circuit: Congress intended to permit the canal funding; no matter that the state did not make this argument until several years into the litigation.
- Allegation: Police shoot, kill armed and mentally ill Colleyville, Tex. man next to his teen daughter, who'd been trying to de-escalate. An officer picks her up, slings her over his shoulder, flings her over a fence, and puts her in a patrol car for two hours. Other officers proceed to interrogate her at the station for hours, force her to write out a statement, and prevent her from seeing family. Can she sue the officer who picked her up? Fifth Circuit (2017): No. Can she sue one of the officers who interrogated her? Fifth Circuit (2017): Yes. You can't detain an innocent witness like that. Fifth Circuit (2018): The development of evidence changes things—the daughter was compliant, the officers thought she consented, so qualified immunity. (We discussed the case on the podcast.)
- DEA agents obtain "anticipatory warrant" to search Belvidere, Tenn. home once undercover agent hand delivers package containing meth "to Perkins." Yikes! The agent hands the package to Perkins' fiancée. Sixth Circuit: Suppress the evidence. The "replace-some-words canon of construction has never caught on in the courts."
- Corrections officers in Nashville, Tenn. remove mentally ill inmate from his cell, pin him down, tase him. He dies of asphyxiation. Excessive force? Insufficient training? Jury: No. Sixth Circuit: New trial. The defense should have turned over a resignation letter (uncovered after trial by The New York Times) from an officer who participated in the cell extraction. The letter undermines defense witnesses' credibility.
- Inmate at St. Louis, Mich. prison is disciplined for creating a disturbance after he received only a half portion of food at mealtime; the discipline is upheld after a hearing. Inmate: I created no disturbance; a guard was retaliating against me; the hearing officer didn't review video of the incident; I am still getting half portions of food. District court: Can't sue. A hearing officer's finding of misconduct automatically "checkmates" all First Amendment retaliation claims. Sixth Circuit: This circuit hasn't adopted the "checkmate doctrine," and we now reject that doctrine. The inmate can sue.
- Allegation: Man waiting at Des Moines, Iowa cab stand sees another man throw a woman to the ground. The first man questions the second—but in a shocked manner, not a threatening one. Yikes! The second man is an off-duty cop; officers pepper spray, beat up the first man. (He's charged with several misdemeanors and acquitted on all counts.) Eighth Circuit: He can sue the officers.
- Pursuant to no-porn policy, South Dakota prison officials forbid inmate (serving life sentence for murder) from receiving book on Matisse and Picasso, images of Renaissance art nudes, erotic novels, and a poster of the Coppertone suntan-girl advertisement, among other things. A First Amendment violation? District court: Totally. Eighth Circuit: Maybe. Maybe not. Remanded for further consideration.
- Customer aggravates Burlington, Iowa convenience store worker, a young woman, with suggestive commentary. She takes a smoke break to evade him; he follows her outside and continues to aggravate. She waves her cigarette at him to back him off; instead, he steps into it. He says she burned him intentionally. She's fired. Eighth Circuit: She can't sue the store.
- Kearney, Neb. probation officer reminds his female probationers he can have them sent back to prison, sexually abuses them. Eighth Circuit: No need to reconsider his conviction or nine-year sentence.
- Allegation: As a ball rolls toward a female student, Smith Center, Kan. teacher announces to high-school gym class, "Don't worry about [Jane Doe], she's used to having balls between her legs"—part of a pattern of lascivious, inappropriate behavior on his part. Tenth Circuit: Jane Doe can sue the teacher.
- From a reasonable distance, man takes photos, video of overturned vehicle (as many other bystanders are doing). Without warning, a Martin County, Fla. officer snatches the man's phone from his hands. The officer arrests him when he declines to leave the scene without the phone, saying the phone contains evidence. Eleventh Circuit: The man can sue the officer.
- Police may approach private homes without a warrant to attempt to engage residents in casual conversation. Eleventh Circuit: Ten Miami officers, who approached a home under cover of darkness, assumed "tactical positions," and then broke down the door, were not engaged in a casual "knock and talk." But no need to suppress the evidence.
- To lobby against passage of bill to legalize open-carry, police distribute photos to Florida lawmakers of scary biker gang members who have concealed-carry permits. (The bill fails.) Bikers: Using our drivers' license photos in that manner violates the Driver's Privacy Protection Act. Eleventh Circuit: No, there's an exception for lobbying when done by a gov't official.
Randy Sowers wants to sell pure, pasteurized, and perfectly safe all-natural skim milk from his Maryland dairy farm and creamery. But if he honestly labels it "skim milk," the FDA will fine him or shut him down. According to the feds, unless you inject vitamin supplements into skim milk, you can't call it "skim milk." Randy doesn't want to add artificial ingredients to his milk, so the FDA insists he label it "imitation." Preposterous! The First Amendment protects the right to speak truthfully to customers, so this week, Randy filed a lawsuit challenging the FDA's misleading labelling requirements. Click here to learn more.