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.
Just in time for a Labor Day weekend road trip, a new report reveals hundreds of America's worst speed traps. Governing magazine has identified 840 municipalities that are "addicted to fines"—that is, they secured at least a tenth of their budget from fines and forfeitures or raised more than $100 in court revenue per capita. (The national averages are 2% and $10 respectively.) Unsurprisingly, several IJ antagonists made the list, including Doraville, Georgia, a speed trap that punishes petty code violations with private probation and Pagedale, Missouri, where residents once faced fines for mismatched blinds. Read Governing's full report and be sure to check out IJ's commentary over at Forbes.com.
- Pork producer protests that proceeds of public purse previously planned for pork promotion were purloined in pursuit of prohibited politicking. Is he a proper plaintiff in this proceeding? D.C. Circuit: Preposterous!
- If a postal inspector submits an affidavit explaining his reasons for believing a package contains methamphetamine along with an attachment describing the package and a magistrate finds probable cause to search that package, is the search's legality defeated by the fact that the warrant itself accidentally includes the wrong attachment describing a totally different package? First Circuit: No, we're pretty sure everyone was clear on what was supposed to happen.
- Convicted on terrorism charges, defendant argues that an apparent draft letter to his wife found on his computer (in which he proclaimed his allegiance to ISIS) should have been suppressed under the marital privilege. But that privilege protects only documents the drafter intends to actually communicate, says the Second Circuit, and the district court was perfectly reasonable in concluding that there was no evidence the defendant actually intended to send the letter, which was in English, to his wife who spoke only Arabic.
- Metalheads will rejoice in this Second Circuit opinion that ultimately requires five different short-form citations for cases with the word "Aluminum" in their name in the course of determining that antitrust plaintiffs may be entitled to prevail in their claims of unlawful manipulation of the metals market.
- The Pennsylvania House opens most legislative sessions with a prayer. Third Circuit (over a dissent): And the First Amendment doesn't require that nontheists be given the chance to offer the invocations. That wouldn't be "prayer" as it's been understood for almost 250 years of American history—as a call for guidance from a higher power.
- Allegation: Disturbed autistic student in mid-tantrum twirls what he calls "nunchucks" in the principal's office. Southlake, Texas policeman, familiar with the student's disabilities, handcuffs him and screams at him. Fifth Circuit: The boy's suit against the policeman is going to trial. "A jump rope in the hands of an eight-year-old child is not a weapon."
- University of Michigan student sues school, alleging due process violations during a disciplinary hearing. District court orders the university's president to attend a mandatory settlement conference, then declares that the settlement conference shall be open to the public. Sixth Circuit: Both those orders are far beyond the federal courts' authority. Mandamus!
- The saga of Kim Davis continues, with the Sixth Circuit affirming that the former county clerk of Rowan County, Ky. does not enjoy qualified immunity for refusing to issue marriage licenses in the wake of Obergefell v. Hodges.
- Also, says Sixth Circuit, the Commonwealth of Kentucky is on the hook for $222,695 in attorney's fees incurred in a different lawsuit challenging Kim Davis' refusal to issue marriage licenses.
- A cautionary tale, courtesy of the Seventh Circuit: After stealing 15 handguns from a Shipshewana, Ind. hunting supply store, don't discuss your crime on Facebook Messenger. And in your ensuing federal trial, don't use your chair as a medium for scratching menacing messages directed to government witnesses.
- California couple undertakes a multimillion-dollar scheme to sell counterfeit 5-hour Energy. Can the government introduce deposition testimony from co-conspirators in an earlier civil case who are now "unavailable" due to invoking their Fifth Amendment right against self-incrimination? Or does that violate the Confrontation Clause of the Sixth Amendment. Ninth Circuit: No need to answer that because the testimony didn't make a difference. Concurrence: But a closer look at the history of the Confrontation Clause suggests that maybe it should have been excluded.
- Is it cruel and unusual punishment to deny gender-confirmation surgery to a transgender prisoner? Ninth Circuit: We can't speak to every case, but for this prisoner—who has attempted self-castration twice—it definitely is.
- DOJ allegation: The town of Colorado City, Ariz. is under the effective control of the Fundamentalist Church of Jesus Christ of Latter-Day Saints—headed by convicted sex-offender Warren Jeffs—and discriminates against non-FLDS members. Following a 44-day trial, featuring evidence that town leaders who failed to follow FLDS commands were excommunicated, the district court agrees. Ninth Circuit: And we see no reason to disturb that verdict.
- After a Sikh man provides a statement to lawyers for another Sikh who was "disappeared" by Punjabi police, he is arrested, beaten, urinated upon, and forced to recant his statement. He flees to the U.S. and seeks asylum. Ninth Circuit: Maybe the police weren't retaliating against you because of your "anti-police views"; maybe they were just mad at you for snitching. Back to India you go.
- If "quit f'ing faking" is not your immediate response to a man who lies motionless for five days complaining that he has injured his neck and can't feel his legs, then you are obviously not an employee of the Tulsa County Jail. Relatedly, the Tenth Circuit largely affirms a $10 million verdict for the estate of just such a man.
- Pro se allegation: After my friend got divorced, he refused to help set me up with his ex-wife. That's intentional emotional abuse (also, he's guilty of money laundering and tax evasion). Tenth Circuit: Yeah, we're pretty sure the district court got this one right when it ruled against you.
- No clever summary; this is just a really interesting, extremely readable (some might say breezy) Eleventh Circuit decision (and dissent) discussing the Fourth Amendment issues that arise when the government takes over a child-pornography site on the dark web and uses it to distribute malware that lets it track down people who visit the site.
- "We do not sentence people to be stabbed and beaten. But we might as well, if the Majority Opinion is correct." So begins the scathing dissent to this Eleventh Circuit ruling, in which the majority finds that prison officials were not deliberately indifferent to the dangers of being stabbed and beaten after an inmate—who told them that he had witnessed 15 stabbings and that he himself had been threatened with stabbing—was stabbed and beaten.
Although Congress abolished debtors' prisons in 1833 and the U.S. Supreme Court declared them unconstitutional 150 years later, today, thousands of Americans are locked up for failing to pay their debts to the state. But two rulings by the Fifth Circuit have just struck a one-two punch against modern-day debtors' prisons. Separate panels both unanimously ruled that criminal court judges in Orleans Parish, Louisiana, have an unconstitutional conflict of interest when they collect fines and fees and issue arrest warrants if defendants don't pay up. IJ's very own Nick Sibilla has more about the decisions on Forbes.com.