The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A roundup of recent federal court decisions
Pet food puffery, suspiciously loud laughter, and the school of hard knocks.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Friends, Indiana's Constitution requires the revenue from "all forfeitures" to go to schools. But police and prosecutors in Indianapolis keep millions of dollars in forfeiture proceeds for their agencies, and a state trial court judge recently ruled that's okay because "all forfeitures" does not include civil forfeitures. This week, we asked the Indiana Supreme Court to take the case. Click here to read more.
- In 2016, FTC staff issue "informal" letter that raises specter of $1 mil per month penalties for robocallers who use soundboards, a heretofore legal technology that helps manage multiple calls, enables callers to use pre-recorded audio clips. D.C. Circuit: The letter is not a final agency action; it's too soon to sue. Dissent: Plaintiffs may not be the most sympathetic, but the feds ought "not be able to transmogrify the mantle of 'staff advice' into both a sharp regulatory sword and a shield from judicial review."
- Atlanta, Ga. nursing home employee testifies she did not vote her conscience in union election after someone in a crowd of demonstrators says, "If you don't vote yes for the Union, we will fuck you up." NLRB: More likely bravado or exuberance than an actual threat. D.C. Circuit: No need to revisit the NLRB's decision not to set aside the election result.
- In "lesson straight out of the school of hard knocks," a sympathetic plaintiff—who was beaten over the head while on the job (causing PTSD, severe depression) and then denied an accommodation (fixed hours rather than rotating shifts)—cannot prevail in his Americans with Disabilities Act suit against his employer, says the First Circuit. Working in rotating shifts is an essential part of his job, assistant manager at a fast food chainin Puerto Rico.
- Piqued that three Muslim men refuse to serve as informants, FBI agents place them on the "no fly" list. Second Circuit: The men can sue the officers for damages under the Religious Freedom Restoration Act, a federal law enacted to protect religious liberty.
- Taxi companies can't sue New York City over ridesharing, says the Second Circuit (citing a pair of IJ cases). Regulating Uber/Lyft differently than taxis doesn't violate equal protection, nor does due process protect cab companies against diminution in the value of their medallions. Moreover, the taxis can't proceed with their claim that said diminution is an unconstitutional taking of their property because they didn't first exhaust the claim in state court. State court (separate case, same claim, citing the same pair of IJ cases): Not an unconstitutional taking. (H/t: Daniel Lehmann.)
- Lancaster County, Penn. man decides to deposit his life savings—$541k cash he'd previously kept at home—in bank. To avoid law requiring banks to report all cash transactions of $10k or more to the feds, he makes 58 deposits of under $10k at multiple banks. He's convicted of 58 counts of "structuring," gets 2–10 year sentence, and must forfeit all the money. Third Circuit: No constitutional problem there.
- On receiving an application to operate a strip club, Rocky Mount, N.C.'s police chief must review "the entire body of municipal, state, federal, and common law" within 15 days so as to determine whether the applicant is in compliance. Fourth Circuit: Unconstitutional prior restraint. That gives the chief too much discretion.
- Texas' revised voter ID law requires voters to either show photo ID or, under penalty of perjury, attest that obtaining photo ID is a hardship (for one of seven specified reasons). District court: The new law must be invalidated as the "tainted fruit" of the old, racially discriminatory law. Would-be voters may reasonably fear being prosecuted if their reading of what constitutes a hardship differs from prosecutors'. Fifth Circuit: Reversed. There's no evidence people are afraid to vote. People fill out forms under penalty of perjury all the time. Dissent: Forcing disproportionately African-American and Hispanic voters into a separate line to fill out extra paperwork is discriminatory.
- At trial over allegedly defective hip implants, plaintiffs' attorney repeatedly emphasizes that two plaintiffs' experts, unlike the defense's, are testifying for free. The jury finds against the manufacturer and its parent company, which must pay $151 mil. But wait! The experts (surgeons who happen to be father and son) did not testify for free; plaintiffs' attorney concealed payments to them. District court: Yeah, but they only got paid a fraction of what defense witnesses got. Fifth Circuit: New trial. No $151 mil award. Separately, the district court also erred by allowing testimony about bribes to Saddam Hussein paid by another company (one of 265 in 60 countries and not a party to this litigation) owned by the parent company.
- Officers enter Highland Park, Mich. pawn shop just before customer, decline to warn him they're responding to a silent burglar alarm. The robber shoots; the officers return fire and hit the customer in the buttocks. Sixth Circuit: The customer can't sue the officers.
- Pet food packaging shows delectable lamb chops, steaks, and fish filets. But, you may (or may not) be surprised to learn, pet food is actually made from "trimmings," not prime cuts of meat. Sixth Circuit: "Puffery" is a fact of life. We see no problem here.
- Two women laugh loudly in parked car, which draws the attention of Smyrna, Tenn. officer. A pat-down of one woman, who is not thrilled at being detained and speaks up about it, turns up a tiny bottle of liquor. Officers take her to ground, breaking her clavicle. Officer: After she kicked me. Woman: Didn't do that. Dashcam video: Inconclusive. State court: After confirming the women were laughing, not fighting, the officer shouldn't have continued the encounter. Dismiss all charges against her. Sixth Circuit: And she can sue for excessive force.
- Train passenger opens his luggage for inspection by Nebraska officer, who then asks to reach into the bag. The passenger replies, "Um, I don't know why?" Not responding, the officer instead reaches in, finds contraband. Eighth Circuit (over a dissent): No need to suppress the evidence. The encounter was entirely voluntary and consensual.
- University of Arkansas officials expel student, an Olympic long jumper, for sexual assault of fellow student. He's initially (mistakenly, say school officials) permitted to remain on campus for an additional semester, which would have allowed him to graduate. Eighth Circuit: Sovereign immunity does not bar the victim's Title IX suit against the school.
- Los Angeles animal control: What are you keeping in those boxes? Homeless man: 18 pigeons, a crow, and a seagull. Animal control: *Takes the birds and kills most of them.* Ninth Circuit: Which would be fine, if the birds had been diseased or otherwise a danger to public health, but we are not convinced that was the case. Back to district court.
- And in en banc news, the Ninth Circuit will not reconsider its holding that Montana's limits on campaign contributions are constitutional despite, says a dissent, a lack of evidence of the quid pro quo corruption the law is meant to address.
Last year, U.S. Customs and Border Protection seized over $40k in cash from Anthonia Nwaorie, a registered nurse traveling from Houston to Nigeria, where she planned to use the money to open a medical clinic for women and children. Anthonia failed to declare the cash because she was unaware she was required to do so. (The requirement applies to departing travelers, but the gov't does little to publicize it (unlike a similar requirement for arriving travelers.)) However, CBP never charged Anthonia with a crime, nor did it initiate forfeiture before the 90-day deadline. So, by law, the money should automatically go back to her—and yet the CBP refuses to return it unless Anthonia waives her right to sue over the seizure. Today, Anthonia and IJ filed a federal class-action suit over the seizure and the CBP's practice of extracting unlawful settlement agreements from property owners. Click here to read more.