The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Puerto Rican Supreme Court overruled a 20-year-old precedent and rejected a challenge to a program that will allow up to 10,000 students a year to obtain gov't scholarships to use at private and public schools. Read more here.
More news from Puerto Rico: Puerto Rico saca "F" en sus leyes de expropriación. Which is to say that an IJ report on Puerto Rico's eminent domain laws finds serious shortcomings that give officials vast power to seize private property for virtually any reason. Click here to read it (in English or Spanish).
- In 2001, Congress authorized the president to detain enemy combatants without trial for as long as hostilities continue. Gitmo detainee captured in 2001: The war in Afghanistan has gone on so long that it's essentially a new, different war; the authority to detain me has thus lapsed. Also, the courts need to impose some kind of limits on these detentions. D.C. Circuit: Not so.
- State police pull man over near Harrisburg, Penn. for staying in left lane longer than necessary to pass vehicles in right lane. He's driving a rental, and his name isn't on the rental agreement; police search the car without a warrant, telling him they don't need his consent. Third Circuit (2017): No need to suppress the evidence. SCOTUS (2018, unanimously): Reversed. Drivers have a reasonable expectation of privacy in such instances. Third Circuit (2018): But the officers complied in good faith with precedent in effect at the time of the search, so convictions affirmed.
- Cigarette company buys tobacco distribution business, hires its former owners to continue running things. Yikes! The distribution business is something of a "Trojan Horse." The ATF funds part of it, and the former owners are longtime confidential informants (who helped nail over 100 cigarette traffickers and generate tens of millions of dollars in forfeitures). Cigarette company: The former owners overvalued their business's assets thanks to the ATF funds and otherwise violated their agreements with us in a bunch of ways. District court: The informants were de facto federal agents, so you have to sue the feds instead. District court (with new judge after original judge retires): Nah, you can sue the informants. Fourth Circuit: You can't reconsider a decision like that. The feds are indeed the proper defendants.
- Last year, the Fish and Wildlife Service issued a permit for a new 600-mile natural gas pipeline project and authorized the pipeline to kill or otherwise harm several endangered or threatened species (including the clubshell, the rusty patched bumble bee, the Madison Cave isopod, the Indiana bat, and the northern long-eared bat). Also that year, the Forest Service authorized the pipeline to cross the Blue Ridge Parkway, which would affect the scenic view from the road. Fourth Circuit: Both approvals are rescinded.
- Allegation: Man who feels he's being wrongly arrested threatens "to make lawful complaints" about Tangipahoa Parish, La. officers. He's charged with threatening, intimidating the officers. Charges dismissed before trial. Fifth Circuit: A state law that criminalizes threatening public employees—including threats to take lawful actions like calling the media, suing an officer, or running against an incumbent—is unconstitutionally overbroad, violates the First Amendment.
- Man with no criminal record who's lived and paid taxes in the U.S. for 20 years is ordered deported in 2013, but ICE allows him to remain until 2017, when he's told to leave for good. His U.S.-citizen children sue ICE officials, alleging violation of their right to familial association and selective removal of their father because of his Hispanic origin. Fifth Circuit: We can't consider either claim.
- Fifth Circuit: No need to reconsider convictions of Mexican drug cartel leader who, among many other crimes, dismembered a 6-year-old with an axe in front of her parents. (Click here for a news story.) Even though many of the crimes were committed abroad, U.S. law can be enforced because the cartel leader directed the flow of drugs into America.
- In 2012, Detroit residents approve ballot measure increasing property taxes; the revenue is to go to schools. But wait! In 2016, officials reroute $56.5 mil of it to subsidize Detroit Pistons basketball team. Does Michigan law require the school district to put a new referendum on the ballot to give voters a chance to approve the change? Plaintiffs (one of whom is a prolific, vexing litigant who doesn't even live in Detroit) don't have standing to bring such a claim, says the Sixth Circuit.
- Man tells Watford City, N.D. police his sister intentionally drove van over his foot. Police, who witnessed the event, say the man intentionally put his foot under a wheel and arrest the man for making a false statement. Allegation: During which, one officer grabbed him by the throat, and the other used a baton to pry him from a lawn chair, breaking his arm. Eighth Circuit (over a partial dissent): Video is inconclusive; a jury might decide it was an unlawful arrest and/or excessive force.
- Drunk driving suspect declines to stand up for handcuffing. Video: A South Dakota state trooper, who has a sizable size advantage, pins the suspect's arms behind him, lifts him up, and smashes him face first into the ground. Eighth Circuit: Could be excessive force.
- Cedar Falls, Iowa officer shoots man three times at close range. (He lives.) Officer: He punched me and tried to grab my gun. Man: I can't remember any of it. District court: The officer's testimony is unrebutted; qualified immunity. Man: It'd be rebutted if he'd turned on his recording equipment. Eighth Circuit: No court that we know of has adopted an evidentiary presumption against officers who fail to record; "we decline to adopt such a radical solution" here. Affirmed.
- Hot Spring County, Ark. jail officer takes inmate who'd been fighting to ground, breaking the inmate's shoulder. Though the jail is liable for the inmate's medical expenses, officers present him with a form stating he would be liable for the expenses, and then, when he declines to sign it, refuse to take him to hospital for surgery. (He ultimately has the surgery after being transferred to prison.) Eighth Circuit: The inmate is entitled to compensatory damages because the jail refused to provide him the hydrocodone prescribed by the ER, leaving him in severe pain.
- Bourbon, Mo. police officer attempts to pull over driver with reputation for fighting police, fleeing traffic stops. The driver flees, drives in the wrong lane even while rounding turns and cresting hills, and then crashes. Video shows him exit his vehicle and walk purposefully toward the officer, who shoots him dead. District court: No qualified immunity. Eighth Circuit: Reversed.
- New semiautomatic handguns sold in California must have a pair of safety features (a chamber load indicator and a magazine detachment mechanism) meant to prevent accidental discharges. They must also be able to "microstamp" identifying information on cartridges or shell cases (so as to aid police investigations). Ninth Circuit: None of which offends the Second Amendment. Partial dissent: The microstamping requirement is an effective ban on new handguns, if, as manufacturers allege, they cannot comply with the requirement. Indeed, no new handgun has been sold commercially in the state since it was enacted, which, perversely, has kept guns with the two safety features off the market.
- California has long banned individuals from bringing guns on school property—with exceptions for concealed carry permit holders and retired police officers. Recently, legislators removed the exemption for concealed carry permit holders but retained, after "potent" lobbying from law enforcement, the exemption for retired cops. Ninth Circuit: No equal protection violation here. Retired cops could run into an enemy at school and need to defend themselves. Moreover, they have special training in firearms safety.
- Allegation: Without provocation, Border Patrol agent in Nogales, Ariz. shoots across the border, hitting teenager about 10 times, mostly in the back, killing him. (The agent is acquitted of murder. Retrial on manslaughter charge is pending.) Ninth Circuit: "Any reasonable officer would have known, even without a judicial decision to tell him so, that it was unlawful to kill someone—anyone—for no reason." The teen's family can sue the agent. Dissent: Courts shouldn't meddle in foreign affairs without direction from Congress, and Congress has consistently declined to fashion a remedy for aliens injured abroad.
- Immigration judge orders asylum seeker removed to Mexico, but asylum seeker gets an emergency stay from federal court. Despite an automatic electronic notice of the stay, a faxed copy of the stay from the asylum seeker's lawyer, and a call from the lawyer to the deportation officer on the case, DHS removes the man to Mexico. Ninth Circuit: And he can sue for that.
- Allegation: Denver detectives coerce confession they know to be false out of developmentally disabled eighth grader. He's convicted of murder and spends 13 years in prison before pleading guilty to lesser charge in exchange for release. Tenth Circuit: He hasn't shown he's innocent, so he can't sue the detectives for malicious prosecution. But his false arrest claim, alleging detectives misrepresented and omitted important details on the arrest warrant affidavit, can go forward. (Click here for a news story on the case.)
- Miami taxicab medallion owners do not have a "property right to monopoly power in perpetuity," says the Eleventh Circuit, citing a trio of IJ cases. Thus, officials did not unconstitutionally take medallion owners' property by failing to block competition from Uber and Lyft. Nor did officials violate the Equal Protection Clause by regulating taxis and ridesharing differently. (Click here for commentary on the ruling.)
In 2016, IJ sued Charleston, S.C. on behalf of three tour guides barred from giving tours because the city wouldn't give them a license. Each guide spent months memorizing the city's 490-page study manual (per officials' instructions) but then failed the licensing exam, which consisted of questions the would-be guides found picayune and irrelevant. But no more! A federal judge has ruled officials violated the First Amendment by imposing serious burdens on the would-be guides' ability to speak without first trying any less restrictive alternatives. Click here to learn more.