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.
Last week, the Iowa Supreme Court struck down part of the state's civil forfeiture law, ruling the Fifth Amendment privilege against self-incrimination trumps the state's requirement that individuals challenging forfeiture of their property disclose how they acquired it. Nick Sibilla has the story over at Forbes.com.
- Newark, N.J. jail officer is sentenced to 25 years for raping pretrial detainee. Third Circuit: No need to reconsider his conviction. (Circuit split! Breaking with the Tenth Circuit, the panel holds that the jury must be clearly informed that, to convict of aggravated offense, defendant must have used force on victim; simply being physically larger than or having coercive authority over victimdoes not suffice.)
- Fun fact: The first phrase inscribed on U.S. currency was "Mind Your Business." After the Civil War, "In God We Trust" started to appear on coins; Congress did not mandate it on all currency until 1955. Does the phrase violate the statutory rights of plaintiffs, who do not so trust (or otherwise object to the inscription)? The Sixth Circuit says no; they can pay by check or credit. Dissent: Lots of transactions are cash only. And as the gov't hasn't produced a compelling reason why the phrase is necessary to further its goals (communicating "the fundamental values on which our system of governmentis founded" to the world), this suit should not have been dismissed.
- Army veteran suffering from PTSD tells VA therapist he thought about shooting Louisville, Ky. police officer (who cited him for minor traffic violation) but that he did not intend to do it. A VA staff member informs the police (without the therapist's say-so). The officer gets the veteran charged with making terroristic threats, neglects to mention therapist's belief that veteran was not a risk. The veteran spends 10 days in jail before charges dismissed. Sixth Circuit: The officer had a warrant, so the veteran can't sue for false arrest (though he might have been more successful had he raised different claims).
- Michigan family court judge is barred by state law, constitution from retaining his position next term, as he will by then have become a septuagenarian. A violation of the Equal Protection Clause? The Sixth Circuit says he eloquently makes a forceful case: Many other prominent public offices have no age limit, and the gov't doesn't seriously try to explain why one is necessary here. But this is a rational basis case, so it needn't. Case dismissed.
- Madison County, Tenn. officer: I shot 18-year-old assault suspect in the back, killing him, as he "gunned" his car directly at me. Eyewitnesses: The teen was driving slowly, steering away from officers (who were not in uniform, did not activate the emergency lights on their unmarked car, and did not identify themselves). Sixth Circuit: No qualified immunity.
- After diet-drug class action settles for $200 million, lawyers collude with a since-disbarred state judge to defraud clients of the proceeds. Clients wise up, sue, and lawyer commences a "high-stakes shell game" to conceal his assets. So begins two decades of litigation. Sixth Circuit: The district court properly froze the lawyer's assets.
- Does the motto "In God We Trust" inscribed on U.S. currency unconstitutionally endorse monotheistic religion? The Seventh Circuit says no, the motto (and other phrases like "one nation under God") merely give a nod to the nation's religious heritage.
- U.S. Congressman (R-Ill.) resigns in 2015 after it emerges he sought to use public funds for (among other things) a chandelier, part of a Downton Abbey-themed redecoration of his office. (Pics here.) Later, he's charged with filing false reimbursement claims (among other things). Ex-Congressman: Congressmen can't be prosecuted for their legislative activities, per the Speech and Debate Clause of the Constitution. Seventh Circuit: Applying for reimbursements is not legislative activity.
- Allegation: On daily basis, inmate with rotting teeth, pus-oozing gums begs for dental care. In the three months it takes Lincoln County, Ark. prison officials to bring him to a dentist, his face becomes disfigured, he pulls two of his own teeth, and he is unable to eat regular food. (A nurse provides ibuprofen.) Eighth Circuit: No qualified immunity.
- Feds: Environmental nonprofit can't sue the feds for declining to turn over public records; it's not sufficiently clear that it was the nonprofit that requested the documents (which would confer Freedom of Information Act standing) as opposed to an individual activist associated with the nonprofit. Ninth Circuit: "FOIA forms should not be a 'gotcha' proposition requiring a lexicographer to discern who made the request." It is clear the nonprofit was the requester; the nonprofit can sue.
- Allegation: After disturbance in Los Angeles County jail (in which inmates light fires, break stuff), officers maliciously and sadistically beat no-longer-resisting inmates, tasing them repeatedly in sensitive areas and breaking their bones while yelling "stop resisting." Video (mandated by county policy) inexplicably goes missing. Jury: Nineteen officers, including supervisors who condoned culture of excessive force, and the county are liable. Pay $950k damages. District court: Plus $5 mil attorneys' fees. Defendants: This suit shouldn't have been allowed to go; the inmates didn't take mandatory prelitigation step of filing complaint forms. Ninth Circuit: In retaliation for filing a complaint, guards put an inmate in yard with rival gang members who attacked him with razor blades. Affirmed.
- An heir of the Egyptian composer who arranged the 1957 song, Khosara Khosara (you might recognize it), cannot sue American rappers who borrowed the tune, says the Ninth Circuit, taking a peek at Egyptian law. The heir had sold the rights to the song but claimed a continued and inalienable moral right under Egyptian law to object to "offensive" uses of the song.
- Protesters erect tents on University of California–Berkeley campus, form human chain to prevent police from taking the tents down. After bullhorn warnings, police use batons to disperse protesters. Excessive force? Ninth Circuit: None of the plaintiffs got really hurt, so no. Concurrence: The protest was entirely peaceful (apart from locking arms), and there was no immediate need to remove the tents. So it was excessive force; but the officers are entitled to qualified immunity because there's no precedent that puts police on notice.
- Man accepts Facebook friend request from undercover detective, posts incriminating posts. A Fourth Amendment violation? The Delaware Supreme Court says no.
- Police officer "door checks" motorcyclist, opening door of his patrol car just as the motorcyclist was passing; the collision knocks the motorcyclist off a bridge. He falls 30 feet, sustains serious injuries. Yikes! The motorcyclist was only suspected of speeding and says he didn't know he was being pursued. The officer ignored instruction to cease pursuit, violated several department policies regarding pursuits. Washington state appeals court: No qualified immunity.
- Allegation: Twitter user @jew_goldstein, a Salisbury, Md. man, tweets GIF to journalist, who is widely known to suffer from epilepsy, with message "YOU DESERVE A SEIZURE FOR YOUR POSTS." The journalist sees the GIF, a rapidly flashing strobe image, and has a serious seizure. District court: The journalist's civil claims for assault, battery, and intentional infliction of emotional distress can proceed. (A criminal case pends as well.)
This week, IJ sued U.S. Customs and Border Protection for seizing over $58k from a Cleveland retiree. It's been over seven months since agents took the cash from Rustem Kazazi, and he hasn't been charged with a crime. Indeed, his family earned and planned to spend the money legally and have documentation to prove it—if CBP would actually give him a day in court. Read more at The Washington Post. And in related news, CBP has returned over $40k seized from a Texas nurse—weeks after IJ filed suit on her behalf. The suit is not moot, however; read more here.