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.
Friends, the Federal Energy Regulatory Commission enables energy companies to seize land from property owners—on a vast scale—while evading judicial review. Which is egregious, say Robert McNamara of IJ and David Bookbinder of the Niskanen Center in The Wall Street Journal.
- Six times, Judicial Watch submits FOIA requests for Secret Service records. Six times, Secret Service fails to respond within statutory deadline. Six times, Judicial Watch sues in court, and Secret Service immediately produces the requested records. D.C. Circuit (with a concurrence and over a dissent): Given these prolonged, unexplained delays, Judicial Watch may be entitled to an injunction compelling the agency to comply with FOIA in the future.
- State and federal regulations often incorporate standards set by private organizations. (For instance, if you're operating a tank barge with a liquid overfill protection system, you're going to need to know what the National Fire Protection Association has to say on the topic.) Copies of the standards cost anything from $25 to $200, but Public.Resource.Org scans them and puts them on the internet for free (and often makes them easier to read). Copyright infringement? D.C. Circuit: Private ownership of documents necessary to determine legal standards raises serious constitutional concerns. But we need not address that issue, as we find that publication of the standards may be fair use—and therefore allowed even if the standards are copyrighted. Concurrence: Ah, the Caligula model.
- Two women make "a grotesque number of false statements" about prominent scientist. One even travels around the world to hand out leaflets (containing calumnies) at conferences where the scientist is to speak. Jury: Pay $3.5 mil for defamation. District court: Also you're enjoined from ever repeating six particular statements in any medium for any purpose. First Circuit: Go ahead and pay, for the most part. But, over a dissent, we vacate the district court's permanent injunction. The First Amendment doesn't allow such prior restraints.
- When tenants fail to pay gas bills, Philadelphia's municipal utility allows debts to pile up for years without notifying landlords, then puts a lien on the property—effectively making the landlords liable for the debt. When landlords complain, the utility tells them to file a complaint with a state agency that has no jurisdiction to address their complaints. Third Circuit: No due process problem here.
- Man files lawsuit under False Claims Act against manufacturer of batteries for use in intercontinental ballistic missile launch controls, asks for $30 mil, settles for $1.7 mil. What follows is—in the trial court's words—a "hellish" dispute over the man's attorneys' fees. Third Circuit: We feel you; the order reducing requested fees is affirmed in almost every respect.
- Abortion clinic challenges Texas law that regulates the disposal of fetal remains, prohibits their being dumped in the trash or sewer. In discovery, clinic demands documents from the Texas Conference of Catholic Bishops regarding any communication it had with Texas officials about the passage of the law and internal documents relating to abortion. Trial court orders the documents produced on an unusually expedited schedule. Fifth Circuit: Which raises a slew of First Amendment issues (free exercise, establishment clause, free speech, association, and petition claims), but we'll leave those to the side for now and resolve this based on the burden to the bishops (who aren't a party to the case). Reversed (over a vigorous dissent and troubled concurrence).
- In wake of housing crisis, a new federal agency that "supervises" lenders Fannie Mae and Freddie Mac forces them to turn their profits over to the U.S. Treasury instead of investors. Fannie & Freddie investors: We want our money back! The whole agency is unconstitutional because it has a single director who can only be fired by the president "for cause." And even if the agency is constitutional, the "profit sweep" regulation violates the statute. Fifth Circuit (per curiam, divided): The profit sweep rule is legal, but the agency is "unconstitutionally insulated from executive control." Citing the Constitution's "revolutionary" separation of powers design, "[t]he Framers were not tinkerers; they upended things." Judge Willett, dissenting in part: The profit sweep rule is also unlawful.
- Disgruntled moviegoer: I want my money back for seeing Ryan Gosling's 2011 movie Drive! The trailer tricked me into thinking Drive would be exciting; instead it had a boring "art house" pace! Also, I think the movie has a subliminal anti-Semitic message because of the Jewish mobsters. Sixth Circuit: You lose. (Spoiler alert: Here is the final scene of Drive.)
- South Carolina officials want to charge a federal prisoner with state crimes, so they file a "detainer"—a request that the federal prison alert the state before releasing the prisoner. The Interstate Agreement on Detainers Act creates procedures for resolving detainers quickly, but South Carolina has let this one linger for years. Prisoner files a habeas petition (without counsel). Sixth Circuit: Unfortunately, although the prisoner filed in the right court, he named the wrong official, so he has to start over.
- After his release from federal prison, man suffering from chronic pain obtains prescription for legal-in-Minnesota medical marijuana. Feds: Which violates the conditions of his supervised release. District court: Not going to send him back to prison, but no more marijuana. Eighth Circuit: Affirmed.
- St. Paul, Minn. police receive word that a man has a gun outside a bar in a rough area of town; they show up in force, point guns at occupants of car outside the bar, none of whom match the description of the suspect. (Turns out the suspect was inside the bar, and he had a hammer.) An officer takes an occupant of the car to ground by means of an arm-bar takedown. District court: Which could be excessive force, even though the occupant did not suffer any permanent injuries. Eighth Circuit: Indeed. No qualified immunity.
- St. Louis police beat up pedestrian who walked away from them. He spends six days in city jail (and gets a chest X-ray) before being transferred to Perry County, Mo. jail (80 miles away) because of traffic warrant there. After a week, he's taken to the hospital. Yikes! He's got facial fractures, bleeding in his brain and his kidneys are near failure. (All charges against him are dropped. He turns out not to have had contraband or been under the influence.) Jury: Two St. Louis officers are liable for $600k. Eighth Circuit: Evidence of excessive force is ample; no need to reconsider the award.
- In Ferguson-Florissant, Mo. school board elections, voters get one vote for every school board seat—but a voter can't use, say, three eligible votes on the same candidate. From 2000 through 2015, white candidates win 59.5 percent of the time, while black candidates win just 20.8 percent of the time—even though whites and blacks make up roughly equal shares of the voting-age population (per the 2010 census). District court: There's no allegation of intentional discrimination, but the electoral process does afford black voters fewer opportunities to elect their preferred candidates. District court again: To remedy that, "plumping" will be allowed: Voters can vote more than once for the same candidate. So, if there are three seats up for grabs, voters can vote up to three times for their preferred candidate. Eighth Circuit: Affirmed.
- Los Angeles County all-female jail has policy of shackling mentally ill women for their "recreation" time, and officers often leave women naked and chained to their cell doors for hours without access to food, water, toilet. Ninth Circuit: Given all of the "uncontroverted evidence" of the above, the district court should not have told the jury to defer to jail officials' claims that the shackling was necessary because of "overcrowding" and "understaffing." Juries may only be instructed to defer to jail officials if there is evidence the policy is security based. (Bonus: This is the same jail that shackled women during childbirth. Super bonus: In 2017, the defendant, now-former Sheriff Lee Baca, was sentenced to three years in prison for obstructing an FBI investigation into widespread abuses by LA county jails.)
- Wagoner County, Okla. man suffering psychotic episode declines to drop kitchen knife; police shoot him with pepperballs. He charges the officers, whose tasers fail, so they shoot him with bullets. He doesn't die. Can he sue? The Tenth Circuit says no.
- Eleventh Circuit: In 1980, the Soviet hockey team hadn't lost an Olympic game since 1968 and had, just a few weeks before the Lake Placid Games, soundly defeated the U.S. by a score of 10–3. But, a miracle on ice! The U.S. wins gold. Indeed, says Judge Rosenbaum: "Our history contains many such stories of triumphs over long odds." But the instant case, which has naught to do with hockey, "is not one of those."
- And in en banc news, the Eleventh Circuit will not reconsider its decision that Title VII does not permit gays and lesbians to bring discrimination claims against employers. Dissenting from denial of review, Judge Rosenbaum likens the precedent the panel relied upon to "an Edsel with a missing engine."
In 2016, Louisiana officials forced Metairie salon owner Lata Jagtiani to fire her two most experienced eyebrow threaders—Ushaben Chudasama and Panna Shah—because they weren't licensed estheticians. But come on! The state's mandatory 750 hours of esthetics training, which costs thousands of dollars, doesn't include any threading instruction. Nor would any training be necessary; threading, an ancient grooming technique that uses only a single cotton thread to remove unwanted hair, is perfectly safe as long as commonsense sanitation practices are observed. So the three women challenged the licensing law under the Louisiana Constitution, and this week—victory! The Louisiana State Board of Cosmetology created a specialty permit for threading, and Ushaben and Panna are back to work after passing a simple sanitation test and registering with the state. Click here to read more.