The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Through its "Bias Response Team," the University of Michigan investigates and punishes students for speech that might evoke "bothersome" or "hurtful" "feelings." Which runs afoul of the Fourteenth Amendment's protections against laws that don't give fair warning of what is and isn't prohibited. So argues Sheldon Gilbert, the director of IJ's Center for Judicial Engagement, over at The Weekly Standard.
- Fifteen-year-old robs Norfolk, Va. house party at gunpoint. His two (adult) confederates plead guilty, get 10- and 13-year sentences. The teen goes to trial, gets 118 years plus six life sentences (with the remote possibility of geriatric release at age 60). He files a habeas petition arguing his sentence is too long, violates the Eighth Amendment. In the meantime, then-Gov. Bob McDonnell reduces his sentence to 40 years. Is the habeas petition moot? Fourth Circuit: Yes.
- Man kills 6-year-old boy near Iowa, La. in 1992. Defense: He's mentally ill, could not have understood his actions. Trial 1: Guilty of first-degree murder. Overturned on appeal due to judge's missteps (used race in jury-foreperson selection). Trial 2: Acquit on first-degree murder (which requires finding of intent to kill) but convict on second-degree murder (which does not). Overturned on appeal due to judge's missteps (e.g., judge was absent during significant portions of the proceedings). Trial 3 (with a new judge): Guilty of second-degree murder, as he intended to kill the boy. Fifth Circuit: Double jeopardy. The jury in the second trial found he lacked intent. The state can charge him with some other crime that does not involve intent, but this conviction can't stand. (Related: After the victim's mother testified she didn't want to see defendant put to death, prosecutors allegedly tried to have her other child taken away from her. H/t: Ethan Brown)
- Midway through a state-court murder trial, the court discovers one of the jurors is the victim's niece. Oops! The niece is dismissed, and the trial goes on after the judge asks the jury as a group whether the dismissed juror had talked to any of them and receives no response—which might have been error on a direct appeal in federal court, says the Sixth Circuit (over a dissent), but isn't enough to warrant habeas relief.
- Collusion, financial intrigue, and under-the table payments for political endorsements. Naturally, we're talking about the 2012 Ron Paul campaign. Eighth Circuit: No need to reconsider any convictions.
- Plaintiff spent 20 years in prison for murder after a San Francisco police sergeant allegedly fabricated evidence and manipulated a witness into falsely identifying him. District court: The sergeant isn't liable because the prosecutor exercised independent judgment in bringing the murder charges. Ninth Circuit: Right, but that judgment may have been based on the phony evidence. Remanded for trial.
- Allegation: Activists used false pretenses to enter Planned Parenthood conferences and set up interviews, which the activists then surreptitiously recorded and mendaciously edited so as to make it seem like Planned Parenthood sells aborted fetal tissue, setting off a national furor. Activists: The suit is a Strategic Lawsuit Against Public Participation, meant to punish us for protected First Amendment activity. Ninth Circuit: The case can proceed.
- Are Seattle's attempts to unionize Uber and Lyft drivers preempted by federal antitrust law? They very well may be, says the Ninth Circuit.
- Allegation: Man flees from traffic stop on foot, clutching his waistband. He flings away an object, which turns out to be a gun. Several seconds later, a Riverside, Calif. officer shoots him in the back, paralyzing him. Ninth Circuit (over a dissent): Qualified immunity.
- In Colorado, once city officials declare property "blighted," owners have 30 days to file a lawsuit—or they are barred from challenging the designation, which can trigger seizure of their property via eminent domain (for seven years). Question: Do officials have to notify property owners of a blight designation? Indeed so, says the Tenth Circuit, but it's up to owners to figure out they only have 30 days to object. In the instant case, Glendale, Colo. officials' failure to notify the owners of carpet store (that sits in the footprint of a proposed mall) violates due process.
- The feds arrest, freeze assets of Casper, Wyo. physician accused of illegally prescribing medication. Uh oh, he needs that money to pay for his defense! District Court: Well, they didn't take ALL of his money. Tenth Circuit: That is not the test.
- Two Muskogee County, Okla. jail officials are convicted for holding "meet and greets," where they beat up new inmates. District court: Such displays "of strength and control may have served a purpose in the control of disorderly inmates and the overall safety of the jail staff." The officers get below-guidelines sentences of one and two years. Tenth Circuit (over a dissent): Which isn't unreasonable.
- Aurora, Colo. police run tags on car with broken tail light, discover the car was seized three weeks earlier in weapons-possession case and a man (a known gang member) associated with the car was arrested. They pull it over; the man is in it; they frisk him and find a gun. He's charged with being a felon in possession. Suppress the evidence? No need, says the Tenth Circuit. Though he was calm and compliant, officers were justified in patting him down to ensure their safety. Dissent: The gov't is going to use this decision to justify frisks in a much broader variety of circumstances than the ones here.
- Florida prison officials bar inmates from receiving magazine that, in addition to covering criminal justice issues, publishes ads advertising services (like three-way calling, pen-pal solicitations, and people locators) that inmates use to conduct criminal activities. A First Amendment violation? The Eleventh Circuit, citing Oscar Wilde, says no. (For some more fun, Ctrl+F for "la-la-land." Or have a gander at Footnote 11.)
- St. Pete Beach, Fla. officials encourage the public to trespass on privately owned beachfront property. Does the city have to pay the owners? Jury: You bet. Pay $1.5 million. Eleventh Circuit: Affirmed. And for its money, the city gets a permanent easement across the parcel.
This week, Arizona Gov. Doug Ducey signed into law a bill that creates a statewide licensing scheme for food trucks. Huzzah! No longer will mobile food vendors be forced to obtain separate permits—and comply with a dizzying array of varying rules—from each town, city, and county where they want to operate. The law also prevents municipalities from imposing egregious red tape, like mandates to move every few hours or stay hundreds of feet away from brick-and-mortar restaurants. Click here to read more.