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.
In 2015, DEA agents raided Miladis Salgado's home based on a bad tip from a confidential informant. The lead agent admitted there is zero evidence linking Ms. Salgado or her money to criminal activity, but for two years the agency refused to return $15k in cash it took from her during the raid, forcing her to hire a lawyer. Then, right before the district court was going to rule for her (we confidently speculate (on account of the aforementioned zero evidence)), the gov't asked the court to dismiss the forfeiture. But Ms. Salgado hasn't been made whole; a third of the cash will go to her attorney, and the Eleventh Circuit has ruled she is not entitled to attorney's fees because the district court dismissed the case without prejudice. This week, IJ asked the Supreme Court to review the case. Click here to read the cert petition.
New on the podcast: dry celling, panhandler speech, and the Washington Supreme Court overrules 100 years' worth of precedent protecting property rights.
- Private college investigates sex assault allegation, finds for the accuser. Accused: The investigation lacked the "basic fairness" required by Massachusetts contract law because the school didn't allow a quasi-cross-examination. District court: Seems so. No punishing the accused while this litigation proceeds. First Circuit: Reversed. Massachusetts law does not require such an examination, and it is not for federal courts to expand state law.
- Man dies, leaving his Norton, Mass. house to his daughter—and six figures of debt to state Medicaid program. They work out a plan where the daughter will sell the house to pay off the debt. Yikes! An attorney swoops in and buys the house for $100 to resolve a tax delinquency. The guvvies launch a five-year campaign to get the house back, which is stymied by the attorney's defiance of seven state court orders, four arrest warrants, a mountain of contempt sanctions—and his filing bankruptcy in an attempt to keep them at bay. But that doesn't work, and he appeals. Guvvies: C'mon. The man's a fugitive, so he can't appeal. District Court: Fair enough. First Circuit: Though a frustrating case, the district court dismissed too soon.
- Thirty-six hours after New Haven, Conn. officials adopt immigrant-friendly municipal ID card program, federal agents descend upon a Hispanic neighborhood in the city as part of "Operation Return to Sender." One of those arrested provides unrebutted testimony indicating he was arrested solely because of his race. Can the feds rely on documents they gathered after the arrest to have him deported? Second Circuit: Nope, it's fruit of the poisonous tree.
- Highland Park, Mich. firefighter criticizes his colleagues and the fire chief for derelictions of duty, including watching porn and carrying out extramarital affairs at the station, which causes them to miss calls to respond to fires. They, in turn, mock his religiosity, "moralizing directives," and sexual orientation. He's fired for falsifying his time sheets. Sixth Circuit (over a pair of dissents): Could be that violated the First Amendment.
- In 2015, a boxing match billed as the "Fight of the Century" between Manny Pacquiao and Floyd Mayweather (with tickets going for up to $231k on the secondary market) turns out to be a "yawner." Yikes! Despite assurances from his camp that Pacquiao was in "pristine condition" and that fans would "see the best Manny," he had in fact gotten injured before the fight. Spectators: Fraud! Ninth Circuit: "The district court was … correct to knock out Plaintiffs' complaints."
- Shortly after the 2012 presidential election, student at New Mexico School of Medicine posts on his personal Facebook page that Democratic voters are (inter alia) "Moloch worshiping assholes." School officials deem the post a violation of the school's "Respectful Campus Policy" and discipline him. A First Amendment violation? Tenth Circuit: Qualified immunity. It is not obvious that "sanctioning a student's off-campus, online speech for the purpose of instilling professional norms is unconstitutional."
- In a "reverse sting operation," police encourage a target to participate in a fictitious crime and then arrest the target for conspiracy. DEA agents in the Southern District of New York have run 179 such stings over the past 10 years. None of the targets have been white. All but two of the targets have been black or Hispanic. District Court: That doesn't sound like a coincidence. Defendants are entitled to limited discovery about why they were targeted. (Click here for some journalism.)
- Seattle officials impose ordinance requiring landlords to rent to the first applicant who meets a landlord's announced criteria. A due process violation and a regulatory taking under the state constitution (which provides more protection than its federal counterpart)? The Washington Supreme Court says no: Our state constitution provides the exact amount of protection the federal one does, so no violations here. And here's a list of 50-odd cases (dating back to 1915) saying otherwise that you can no longer rely on.
- Beaverton, Ore. officer pulls over motorist for failure to signal, obtains consent to search the car. (The search yields contraband.) Oregon Supreme Court (over a dissent): The state constitution forbids officers from prolonging a traffic stop by asking consent to search for contraband that the officer had no reason to believe was in the car and that was unrelated to the original basis for the stop. (via @obarcala)
- And in en banc news, the Third Circuit will not reconsider its decision barring the FCC from eliminating rules that (1) prohibit a company, if it owns a newspaper, from also owning a TV station or a radio station in the same market and (2) prohibit a company from owning both a TV station and a radio station. The agency insufficiently considered how the changes would affect female- and minority-owned media companies.
After Winston-Salem, N.C. surgeon Gajendra Singh learned that his patients were struggling to afford MRIs and that local providers make it difficult for patients to figure out their out-of-pocket costs upfront, he decided to buy an MRI machine and offer those services for half the going rate. But the state's "certificate of need" law makes that virtually impossible, and last year Dr. Singh sued, arguing the state constitution doesn't allow the legislature to ban medical providers from offering much needed services solely to benefit existing providers. This week, a trial court denied the state's motion to dismiss. Click here to learn more.