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.
After four years of litigation, Philadelphia's civil forfeiture machine will soon grind to a halt. IJ Senior Attorney Darpana Sheth has the details over at The Philadelphia Inquirer.
- Woman enlists the help of Virgin Island marshals with truant 15-year-old son. Allegation: Marshals arrive and find boy relaxing unarmed but nevertheless shoot him, rendering him quadriplegic. Third Circuit: No immunity. You can't shoot someone who provides no serious threat of immediate harm.
- Pro-tip from the Third Circuit for attorneys requesting fees: Don't have a single-spaced, 6- to 8-point font, 44-page fee petition including "hundreds of inappropriate, unethical entries that would likely be illegal if billed to a client." You might find yourself facing no fees, a sanction, and a referral to the attorney disciplinary board.
- The Fifth Circuit finds that Louisiana's law requiring a doctor to have hospital admitting privileges in order to perform an abortion is not unduly burdensome because only one of the six affected doctors had tried and failed to obtain such privileges.
- Teachers at a Louisiana charter school vote to unionize. The school ignores the vote, arguing that the National Labor Relations Act applies only to private employers, and the school is a political subdivision. Fifth Circuit: The school is privately owned and operated, and has privately chosen board members; it's a private employer. Concurrence: That's right, but not because the NLRB said it's right.
- The Fifth Circuit considers the titillating question of whether Louisiana can prohibit erotic dancers between the ages of 18 and 20 from exposing their breasts and buttocks and holds that, while the law is not overbroad, it is unconstitutionally vague because it doesn't say how much "clothing" is sufficient. Preliminary injunction affirmed; the show will go on.
- Drug suspect flees Tupelo, Miss. police and hides in a crawlspace. K9 officer orders him to come out and then releases a dog, which bites the suspect until he flees the crawlspace, tackles the officer, and nearly beats him senseless before the officer shoots four times, killing the suspect. The Fifth Circuit rules that qualified immunity is warranted.
- But, on remand from the Supreme Court, the Fifth Circuit says, "Yeah, we got this one right the first time," and again rejects qualified immunity for Sachse, Tex. officers who fired on a 17-year-old who was holding a gun to his head, which he then discharged, severely disabling himself.
- Former Detroit Mayor convicted of litany of crimes relating to city contracts, including extortion, bribery, fraud; sentenced to 28 years in prison and ordered to pay $4.5 mil in restitution to city. Sixth Circuit (2015): Restitution should reflect the amount the victim lost, not necessarily the profit defendants gained. Recalculate. District court: Fine. Pay $1.5 mil. Sixth Circuit (2018): That's more like it.
- Man attacks his neighbor, a U.S. senator from Kentucky, takes plea deal wherein the gov't agrees to seek 21-month sentence. But wait! The judge sentences him to just 30 days. Prosecutors appeal the sentence, in spite of alleged implication by the gov't that no appeal would be made. Sixth Circuit: The language in the plea deal waiving the man's right to appeal does not imply a reciprocal waiver of the gov't's right to appeal. (Note: There is a circuit split on the issue.)
- Ohio prison officials deny in-person interviews with death row prisoners who took part in deadly 1993 Lucasville prison riot. Media: Which violates the First Amendment. Sixth Circuit: Not so. A blanket ban on in-person interviews with death row inmates is content neutral. And because it also serves a legitimate security interest, the ban would likely also be permissible even if it had specifically targeted content related to the riot. In the context of prisoners' rights, "'neutral' does not require that a regulation be divorced from the speech's content."
- After a 5-foot-tall woman continues walking despite a Wymore, Neb. officer's command to "get back here," the officer grabs her in a "bear hug," throwing her to the ground, breaking her collarbone and causing her to briefly lose consciousness. Qualified immunity? This Eighth Circuit panel says yes, over the dissent's observation that some things are so obviously wrong that we shouldn't need on-point cases to tell us not to do them.
- Fun fact: North Dakota is the only state that does not require voters to register. You just show up with ID, which must have a residential address on it, and vote. District Court: Many Native American voters lack residential street addresses. Stop enforcing that part of the law. Eighth Circuit: Injunction stayed. "There is no universal rule that forbids a stay after Labor Day."
- California Uber drivers: We're Uber employees (not independent contractors), so we're entitled to expense reimbursements. Plus, Uber didn't turn over all our tips. District court: This merits a class action. That being so, let's sort through a ton of issues. Ninth Circuit: Actually, this case should have gone to arbitration. The district court's class-related orders are vacated. The arbitrability of arbitration strikes again!
- Butylone is an illegal hallucinogen, and so are its positional isomers—molecules with the same chemical formula but a certain different arrangement of atoms. Ethylone might be a positional isomer of butylone, but the regs are unclear. Eleventh Circuit: All right, we're "just going to have to science the heck out of this." Defendant's conviction is vacated. Deference to the DEA's view of the regs doesn't belong in a criminal case. Instead, we remand for an evidentiary hearing on the scientific community's definition of "positional isomer." Concurrence: "Criminal statutes and regulations need to be written in a way that allows a reasonable person to understand what is prohibited."
- Allegation: Birmingham, Ala. school resource officers have a nasty habit of pepper spraying and then failing to help decontaminate students. District court: That calls for a change in policy. Eleventh Circuit (over a partial dissent): Reversed. By our calculation, students have a 1.6 out of 10,000 chance of being unconstitutionally sprayed. That's not frequent enough for class action plaintiffs to have standing. And we don't need to decide if there's a constitutional violation; it wasn't clearly established that the alleged conduct was unlawful; qualified immunity applies. (A handful of individual students can keep the $5k damages awarded to them, though.)
- Plaintiff is such a prolific inventor that the Patent and Trademark Office employs 14 examiners just to review his applications, some of which have languished for decades. Seeking to take some work off their plates, the PTO enacts new regulations that basically allow them to sit on his applications forever, with no right of appeal. Arbitrary and capricious? District Court: No need to answer that, because I don't have jurisdiction. Federal Circuit: Actually, you did. No harm, no foul, though, because he loses anyways. (H/t: Andrew Trask.)
Back in 2013, Adams County, Penn. law enforcement caught Justen Irland waving a gun during a road rage incident. After he pled guilty to disorderly conduct, law enforcement tried to forfeit his legally owned gun—even though it had no express statutory authority to do so—through so-called common law forfeiture. This week, the Pennsylvania Supreme Court ruled that law enforcement could not forfeit the gun since there is no legal basis for common-law civil forfeiture in Pennsylvania. Click here to read IJ's amicus brief urging the court to consider law enforcement's incentive to seize property (it keeps 100 percent of forfeiture proceeds).