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Volokh Conspiracy

Short Circuit: A Roundup of Recent Federal Court Decisions

Cherry regulation, landfill corruption, and taking some air.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Nashville prohibits people who run home businesses from allowing customers to visit. Want to teach piano lessons in your living room? Illegal. Have a soundproofed recording studio in your basement? No renting that out. Run a one-chair salon? Keep your clippers to yourself. Which is ridiculous—and also unconstitutional. Click here for some in-depth reporting on Nashville's client prohibition from

  • Allegation: Man steps outside his home in Southeast D.C. to take some air. He's obstructing no one, but police officer in a passing patrol car yells at him to move along, arrests him when he declines. Weeks later and a few blocks away, the same officer arrests another man who stepped outside for a smoke (on Christmas Eve) and who was also not obstructing passersby. D.C. Circuit: A D.C. law that authorizes police to arrest (after a warning) people who obstruct pedestrian traffic is not unconstitutional in all its applications.
  • Columbia law prof disappears from NYC subway in 1956, never to be found. Perhaps he was murdered by agents of Dominican dictator, whom he'd criticized. Alleged to be involved: a former FBI agent who worked for the dictator and was convicted (later reversed) of failing to register as an agent of a foreign government. May historian obtain the ex-agent's grand jury records? District court: Generally, courts can authorize grand jury records' disclosure if historically significant. D.C. Circuit (over a dissent): Not so. Grand jury secrecy is the rule, the only exceptions to which are expressly enumerated, and none provides a blanket exception for historically significant documents.
  • In 2012, [REDACTED] sent a big chunk of money to a corporation, which sent a big chunk of money to a nonprofit, which sent a big chunk of money to a political action committee. That violates campaign finance law, and the Federal Election Commission ultimately settled the case with a fine of $350k on the corporation, the nonprofit, and the PAC, but not [REDACTED]. May the FEC now release documents that would disclose [REDACTED]'s identity, over [REDACTED]'s objections? D.C. Circuit: [REDACTED] loses. Dissent: [REDACTED] should win.
  • Certain Dallas landlords refuse to accept "Section 8" vouchers, which are federal rent subsidies for low-income tenants. (Landlord participation in Section 8 is voluntary.) But the users of those vouchers are disproportionately members of racial minorities. And—since a 2015 Supreme Court case—the federal Fair Housing Act can prohibit housing policies that disproportionately affect minority groups. So does the refusal to accept Section 8 vouchers violate the Fair Housing Act? Fifth Circuit (2–1): It does not. The Supreme Court said to be careful of claims like this, which take disparate impact liability too far.
  • Near the start of the 2013–14 school year, Mississippi truancy officer calls 6-year-old student's listed contact person to figure out why student is missing school. Beats me, says the contact, I'm his aunt; he doesn't live with me. The officer apologizes for the confusion. Fast-forward to the end of the school year: Student has 16 unexcused absences, so the truancy officer swears out an arrest warrant for … the aunt? She's handcuffed, taken to jail, and strip-searched before the mistake is discovered. Fifth Circuit: No qualified immunity for that.
  • The great philosopher David Hume argued that if you see one billiard ball strike another, after which the first ball stops and the second ball acquires motion, you don't really see the first ball cause the second to move; you just see one event follow the other. A Humean district court judge might apply similar reasoning to this New Orleans waste disposal company, which made $20k in illegal campaign contributions through four shell corporations to former New Orleans Mayor Ray Nagin (who was sentenced to 10 years in prison for accepting (unrelated) bribes), after which Mayor Nagin canceled a competing waste disposal company's landfill contract. Fifth Circuit (over a Humean dissent): This RICO case by the aggrieved competitor should have gone to a jury.
  • Georgetown, Ky. police officer shoots driver "at some unspecified point" after the driver hit a police cruiser with her car. The driver later pleads guilty to wantonly endangering the officer's life. Does this plea bar the driver's excessive force lawsuit? Sixth Circuit: It depends. If the officer shot because he was in danger, the claim is barred. If he shot after the threat had ended, it isn't. Remanded for limited discovery.
  • Some cases deal with issues so earthshaking that they invoke "ordered liberty" itself. There's also this case, in which the Sixth Circuit holds that a particular cooperative of cherry growers was lawfully a member of the federal Cherry Industry Administrative Board—a regulatory body that we are not making up.
  • "These appeals, unfortunately, are not Nora's first encounter with attorney discipline. See, e.g., [string cite]." You can probably tell from the opener that the Seventh Circuit upheld Ms. Nora's suspension from practice in the Western District of Wisconsin. But don't overlook the additional sanctions imposed for her conduct during the appeal.
  • Woman is convicted of assault for slapping a fellow passenger on flight from Minneapolis to Los Angeles. (She's fined $760.) Ninth Circuit (creating a circuit split): Conviction reversed. The trial was held in federal district court in Los Angeles, but the assault happened before the plane reached that district's airspace. Dissent: Asking victims to pinpoint and the gov't to prove the precise moment an assault took place will make prosecutions (of crimes much more serious than this one) on board aircraft well-nigh impossible.
  • Man spends over four years in jail awaiting trial. That's too long! Kansas court orders him released, and the Kansas Supreme Court affirms, holding that the Sixth Amendment's Speedy Trial Clause applies to civil commitment proceedings. Tenth Circuit: But he can't sue the state official in charge of civil commitments for not taking action sooner; some of the delay was on him for asking for new lawyers and judges.
  • And in other news, the Second Circuit has withdrawn its decision holding that landlords can be liable for tenant-on-tenant harassment under the Fair Housing Act.

This week, IJ launched two new cases. Up in Pennsylvania, Lancaster and Berks County prosecutors are refusing to turn over to a local journalist records that detail how much property they take through civil forfeiture and how the proceeds are spent—despite a ruling from the state's Office of Open Records that those records should be available to the public. Click here to learn more. And in Indiana, IJ is challenging a law that bars patients from utilizing telemedicine to obtain prescriptions for eyeglasses or contacts. The tech is safe and effective, but it threatens some optometrists' profits, and they prevailed on the legislature to ban it. Click here for more.