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.
New on the Short Circuit podcast: cursing drivers, revoked driver's licenses, and peeping police.
- Army Corps of Engineers authorizes Virginia power company to build electrical towers across a river. Conservation groups sue. In the district court, the Corps opposes a preliminary injunction: Don't worry, we can always remove the towers later. Then again, opposing an injunction pending appeal: Don't worry, we can always remove the towers later. The D.C. Circuit invalidates the project. Then the Corps: Actually, we finished the project a week before the circuit decision and didn't tell anyone. Since there's $400 mil invested in the towers, can they please stay up? D.C. Circuit: This is "more than a little troubling." The district court will decide whether the Corps is barred from making this argument.
- Gluten-sensitive boy goes to restaurant in Colonial Williamsburg. The restaurant won't let him sit and eat the gluten-free food he brought for himself. (Doing so might be against the local health code avers the restaurant). Fourth Circuit: Could be a violation of the Americans with Disabilities Act. The boy's suit can proceed to trial.
- Hillview, Ky. police discover mayor's son, backpack filled with meth-making materials at the mayor's home. To save the mayor embarrassment, the police chief orders the officers to remove the backpack. They do, but an officer reports the incident to the authorities and word leaks to the public. Two officers who cooperate with an FBI investigation are subjected to series of dubious disciplinary actions. Sixth Circuit: Smells an awful lot like First Amendment retaliation.
- Allegation: Allen Park, Mich. officer arrests motorist without probable cause, tightens handcuffs to the point of bruising, takes him to jail, strips him, repeatedly searches his groin, probes his rectum, and, for good measure, throws his wedding ring across the room. There's no contraband to be found. Qualified immunity? Sixth Circuit: No.
- Child porn recipient gets enhanced sentence because 40 years earlier, when he was 16, he had sexual contact with a boy of 11 or 12. The enhancement requires a 4-year age difference, and 16 minus 12 equals 4, right? Sixth Circuit: Just subtracting the ages could overstate the difference. If the defendant had just turned 16 and the boy was almost 13, the difference would have been closer to 3 years. The sentencing judge should have counted in days. The birthdays aren't in the record, so remanded for more information.
- Indianapolis DEA taskforce members barge into suspected drug dealer's house, find oodles of meth, and then use that evidence after the fact in their application for a warrant to . . . search the house. "We do not condone this illegal behavior," says the Seventh Circuit. But even so, the district court rightly declined to suppress the oodles of meth at trial. The DEA's warrant application had enough other information to establish probable cause. And despite one officer's contradicting himself on the stand, the district court reasonably found that agents were going to seek the warrant whether or not they found the meth.
- Man collects unemployment benefits but is actually still working. Fraud! He's sentenced to probation but could have served a max of five years. Seventh Circuit: It does not violate the Second Amendment to prohibit him from possessing guns. His crime may not have been violent, but it was serious. And 40% of nonviolent felons are caught committing subsequent crimes (some violent)—who knows on which side of the line he'll fall?
- As every lawyer knows, quia timet—Latin for "because he fears"—is an equitable claim for protection from probable future harm. Learn more in a scholarly Seventh Circuit opinion featuring Coke and Story, writs of brevia anticipantia, and even ə—the International Phonetic Alphabet symbol for the schwa sound. [Short Circuit warns you that the facts are about surety bonds, but you can just read around that.]
- Passing motorist shouts profanity (a well-known phrase that has inspired artists ranging from Cee Lo Green to Lily Allen) at Arkansas state trooper who is conducting a traffic stop. The trooper then pulls over the shouter and arrests him for disorderly conduct. Eighth Circuit: No qualified immunity for that. A two-word unamplified outburst is not disorderly, and criticizing the cops is protected speech.
- Anti-abortion organization allegedly infiltrates meetings of pro-choice group, secretly films the meetings, then edits those films to inaccurately portray pro-choice folks as participants in the unlawful sale of fetal remains. Pro-choice group sues, and the district court preliminarily enjoins the anti-abortion group from disseminating the films. But the anti-abortion group, its founder, and its lawyers (in a different case) keep making the videos available on YouTube. Civil contempt sanctions ensue in the form of $195k to be paid by the anti-abortion group (and its founder and lawyers) to the pro-choice group. And because that order is not a final judgment, we lack jurisdiction to review it at this time, says the Ninth Circuit.
- Acting on an anonymous tip that a black man has been seen carrying a firearm—totally legal in Washington state—Seattle police make contact with a black man. Seeing the cop cars and patrol lights, the man runs, is seized, and is found to possess a gun, drugs, and cash. All of which should have been suppressed, says the Ninth Circuit. An anonymous tip about presumptively lawful activity does little to support the suspicion needed for the stop. Nor does the fact that the man fled. Particularly given "racial disparities in policing," many innocent minorities may reasonably be disinclined to interact with law enforcement; in fact, the Seattle Police Department itself is subject to a federal consent decree focusing on eliminating constitutional violations. Concurrence: But just to be clear, there's no evidence that this particular stop "fits into a longer history of Seattle law enforcement engaging in racially discriminatory policing."
- And in en banc news, the Eleventh Circuit will reconsider its decision to unseal grand jury records related to 1946 murder of two African American couples in front of a large crowd in Walton County, Ga., perhaps the last mass lynching in American history.
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