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.
"We're not asking for the Wild West. We're asking for cookies." New Jersey is the only state that completely bans the sale of homemade food, and home bakers are suing over it. Read more about it in The New York Times.
New on the Short Circuit podcast: Three wise men or three stooges? Special guests Michael Kimberly of McDermott Will & Emery and Adam White of the Scalia Law School discuss the Supreme Court's three big admin law decisions from last term. Click here for iTunes.
- Allegation: Upset at not getting a full scholarship, female student falsely accuses male Hofstra University tennis coach of sexual harassment. The school declines to interview relevant witnesses, among other procedural irregularities, and fires the coach. Second Circuit: Could be the school favors accusing females over accused males. The coach's suit should not have been dismissed.
- In 2013, the feds create a fake university, the University of Northern New Jersey. The sting ends in 2016, having secured 22 arrests related to brokering fraudulent student visas. The feds revoke the visas of some 500 foreign students who "enrolled" at the school. (At oral argument, the feds say the students are innocent victims, but later, "for reasons known only to the Government," change their tune.) Third Circuit: The students' class action against the feds should not have been dismissed.
- Allegation: Tired of hearing a prisoner complain about illness, prison physician assistant falsely claims prisoner harassed/stalked her, leading to prisoner's confinement in "The Yellow Room"—a cold room, kept constantly lit, with no bedding or toilet paper, in which prisoners are given only thin "paper like" garments to wear. Cruel and unusual punishment? Third Circuit: Sounds like it; warmth and sleep are among "the minimal civilized measure of life's necessities."
- Allegation: Pennsylvania inmate gets jumped by other inmates who break his jaw. What follows is a year of medical misadventure. Were prison officials deliberately indifferent to his suffering? District Court: Doesn't matter because he didn't exhaust his administrative remedies. Third Circuit: Yes, he did; prison officials just didn't respond to him. The case can go forward.
- Texas' ban on public corporations owning liquor stores was written by a lobbyist for Texas liquor retailers who wanted to keep competitors out of the state. Does that mean the ban was intended to discriminate against interstate commerce? You might think so, but the Fifth Circuit isn't so sure and asks the district court to take a second look.
- Mississippi man is convicted of murder in 2004 based largely on the dubious forensic testimony of Dr. Steven Hayne. Turns out lots of folks, including a justice on the Mississippi Supreme Court, think Dr. Hayne is a charlatan whose pseudoscientific methods have led to multiple false convictions. The man seeks habeas relief six months after the release of a deposition transcript of Dr. Hayne that tends to confirm these views. Fifth Circuit: Sorry, but you're required to file a habeas petition within a year of when a reasonable person would have discovered the facts justifying the petition, and people have been saying Dr. Hayne is a hack since way before that deposition transcript was released. So life in prison it is.
- Allegation: Pretrial detainee is cuffed and shackled, but there's no seatbelt in the van taking him to Harris County, Tex. jail. He's thrown out of his seat by the deputy's sudden accelerating, braking, and swerving. He injures his back, he says, when the deputy hits a pothole or speedbump. Fifth Circuit: "This is not evidence of driving in a manner creating a substantial risk of serious harm."
- Michigan man is convicted of murder based on the previously recorded testimony of a woman who refused to testify at trial. Shortly after the trial, and repeatedly over the following decade, the witness recants her testimony, claims she was pressured into it by a cop who threatened to have her kids taken away. Also, another eyewitness comes forward claiming she saw the actual killer but did not disclose this earlier because her father, a police officer, told her not to. Enough for a habeas petition? Sixth Circuit: It's certainly enough for the district court to hold an evidentiary hearing, which we now instruct it to do.
- Grosse Pointe Farms, Mich. woman's estate sues an array of police officers, alleging the woman was murdered and officers told the murderer they would cover up the crime. Sixth Circuit: The estate has failed to make out a claim under the "state-created danger" doctrine (an offshoot of the Due Process Clause). And, adds Judge Murphy (in an all-judge concurrence), we might want to revisit whether the state-created danger doctrine is even a thing. It seems like the Equal Protection Clause might provide "a more plausible textual hook" for claims police denied someone the equal protection of the laws.
- Man sues Memphis, Tenn. seeking injunction to let him protest on a privately owned street abutting Planned Parenthood clinic. And because he is likely to prevail, says Sixth Circuit, a preliminary injunction must issue; the street "looks and functions like a public street," so it is a traditional public forum.
- "May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others? No, case law makes clear." So says the Sixth Circuit, affirming a denial of qualified immunity for Shelby County, Tenn. officers who shot and killed a suicidal man who was holding a knife to his own throat.
- Allegation: Illinois man wakes up to find the dead, bloody body of his son. Although the man speaks limited English, police interrogate him for hours with an untrained officer shoddily translating into Korean. The man's confusion (and lack of medication for high blood pressure and diabetes) is obvious. Still, based on the interrogation, he's held in pretrial detention for four years until a jury finally acquits him of the murder—which, it turns out, might have been a suicide. The man sues the officers involved. Seventh Circuit: To a jury this must go.
- The downside of one of the more nauseating decisions this week? The Seventh Circuit had to explain that "the stench … was compounded as insects became drawn to the standing feces and urine." The upside? No qualified immunity for Lake County, Ill. jail officials who allegedly spent three days depriving pretrial detainees of enough water to drink, bathe, and flush the toilets.
- The feds interrogate bank robber imprisoned at Pontiac, Ill. correctional facility. He admits to another robbery and accedes to a DNA swab. Bank robber: At the time of the interrogation, I'd been in solitary confinement for a prolonged period. My confession wasn't voluntary. Seventh Circuit: Conviction and sentence (an additional 18 years) affirmed.
- Man and woman are horsing around at a pool; a bystander interprets this as domestic violence and calls police. When the woman (rather belligerently) attempts to tell the cops what happened, a Wymore, Neb. officer throws her to the ground, fracturing her collarbone. Eighth Circuit (en banc): When a 5-foot-tall woman wearing only a bathing suit is neither fleeing, nor resisting arrest, nor ignoring commands, it is clearly established that—just kidding! Qualified immunity. A dissent: Can we at least find a constitutional violation so the bone-breaking will be prohibited next time?
- Pursuant to a 1997 settlement agreement, Border Patrol must ensure "safe and sanitary" conditions for detained minors. Does that mean minors must have access to soap, towels, showers, dry clothing, and toothbrushes even though the agreement doesn't expressly mention them? District court: Yes. Yes, it does. Ninth Circuit: Because the district court is enforcing, rather than modifying, the 1997 agreement, we don't have jurisdiction to reconsider its order.
- Boynton Beach, Fla. police beat up motorist (who clipped an officer who was on foot) and two passengers after a high-speed chase. Several officers neglect to mention the beating in their incident reports. But wait! It's all on video. A supervisor instructs them to change their reports, tells the FBI he doesn't remember telling anyone to change their reports. Eleventh Circuit: No need to disturb either the conviction of one of the officers for the beating or the supervisor's conviction for trying to mislead the FBI. But it could be their sentences (six months' probation for both of them) were infected by legal error, so the district court needs to take another look at those.
- Minneapolis police obtain warrant, take drug dealer to hospital for anal cavity search. A doc involuntarily sedates the man, uses forceps to remove a baggie of cocaine. Minnesota Court of Appeals (over a dissent): Which was an unreasonable search. Suppress the evidence.
- In 2014, Maryland decriminalized possession of less than 10 grams of marijuana, making it a civil offense. So if police come upon a legally parked vehicle, smell "fresh burnt" marijuana, and see a joint in the center console, they do not have probable cause to search the driver, says Maryland's high court. Concurrence: Don't drive stoned.
- Maryland appellate court: A sexually invasive search to find drugs on the side of a highway requires exigent circumstances, and police convenience doesn't count. Conviction reversed.
- And in other news, the North Carolina Court of Appeals has withdrawn last week's opinion holding that flipping off a cop gives the cop reasonable suspicion that crime is afoot. Will the panel reverse course? Will it leave the holding intact but further explain its reasoning? Stay tuned.
Earlier this year, Nevada legislators passed a bill that eliminates over $2 mil in funding over the next two years for K–12 scholarships for low-income families. (The scholarships are funded by private businesses that receive a tax credit for donations to scholarship organizations, which then disburse funds to needy families to send their children to private schools.) But the Nevada Constitution requires a two-thirds supermajority in each house of the legislature to pass a revenue-raising bill, which the bill is, so this week IJ filed suit on behalf of parents and students who lost their scholarships and won't be attending the schools of their choice this year. "The quality of school available to a child shouldn't be based on their ZIP code or their parents' income," said IJ Senior Attorney Tim Keller. Click here to read more.