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.
There is a pressing need for home health services among Louisville, Kentucky's Nepali-speaking community, but earlier this year state health officials prevented a new home health agency with nurses and aides who understand Nepali language and culture from opening up shop—solely to protect existing agencies from competition. Which violates the Fourteenth Amendment, and this week IJ filed suit. Kentucky Public Radio has the story.
- Wilmington, Mass. man stashes fentanyl in garbage bags and stores them in his sister's storage unit. Police get sister's consent to search the unit, but she points out that the bags belong to her brother, not her. Police search the bags anyway. Which violated the Fourth Amendment, says the First Circuit. The sister had neither actual nor apparent authority to consent to a search of her brother's bags, so the brother's conviction (and accompanying 10-year sentence) must be vacated.
- In an appeal of President Trump's efforts to block congressional subpoenas aimed at forcing banks to disclose records about him, his family members, or his businesses, the Second Circuit holds that there is no good reason to block most of the documents—however, some sensitive personal information should be redacted. Dissent: The subpoenas are way too broad. Trump and his associates should be able to object to specific categories of documents, and the committees should have to explain what legislative purpose supports the disclosure of those specific documents.
- Pennsylvania man convicted on drug offenses has his sentence enhanced when he's caught with three kilograms of methylone. One minor problem: Neither the judge, nor the prosecutor, nor the defense attorney knows what methylone is or what drug it's most like. So they assume it's basically ecstasy and, thanks to sentencing guidelines, treat it the same as 5,000 kilograms of marijuana. Third Circuit: The defense attorney really should have looked into this more. Ineffective assistance of counsel.
- Fans of the "Back to the Future" films, and the DeLorean automobile that features prominently in them, may or may not be edified by this Third Circuit opinion resolving a dustup between the heirs of John DeLorean and a company that purchased the DeLorean's trademarks.
- Is voyeurism a "sexual act" requiring registration under the Sexual Offender Registration Act? Yes, says the Fourth Circuit, because it is something voluntarily done for sexual purposes. Dissent: No, because it is not something sexual that is voluntarily done. (Both sides dive deep on statutory interpretation.)
- In 2014, Austin, Tex. officials enacted an ordinance requiring private landlords to accept tenants who pay their rent with federal housing vouchers. In response, state officials enacted a law barring municipalities from passing ordinances like Austin's. Fifth Circuit: Austin can't sue the state's attorney general. Though the AG has authority to enforce the (state's) law, it's not clear that he actually would. Moreover, if the city were to enforce the (city's) law in spite of the state's ban, it would face no consequences.
Webb County, Tex. officer pulls man over for driving 30 in a 60 mph zone and discovers that he's secretly transporting illegal aliens. But wait! Texas law only prohibits slow driving where it impedes the normal flow of traffic, and this man was undisputedly driving on an otherwise empty road. Doesn't that make it an illegal pretextual stop? Fifth Circuit: We think an officer could reasonably construe a single vehicle as traffic, so no.
- Greenup County, Ky. officer serves man with court order; the pair get into shouting match. (It seems the man took umbrage when he perceived that officers tried to enter his home while he was still dressing.) The officer orders the man to step off his porch ("come down here boy."). The man declines, and the officer pepper sprays him and arrests him. (He's charged with a misdemeanor, "menacing." The jury acquits). Sixth Circuit: No qualified immunity. Cell phone video clearly shows the officer lacked reasonable suspicion the man had committed a crime and used excessive force.
- Unemployed Indiana woman takes work as a phone-sex operator, quickly discovers it is not the "flirty fun" she expected. She self-publishes a pseudonymous book about the experience titled, "Conversations with Monsters." Some time later, she takes job with the Indiana Army National Guard as a member of the Volunteers in Service to America program. Uh oh. Her boss asks to become Facebook friends, discovers the book, and soon fires her. A First Amendment violation? Seventh Circuit: No qualified immunity; let the case move forward.
- Agitated man yells at Jacksonville, Ark. officers, raises a fist toward an officer's head. He's tased. While the man is writhing on the ground, an officer tases him a second time. Though ordered to roll onto his stomach, the man instead attempts to get up, so he's tased a third time. Eighth Circuit (over a dissent): No qualified immunity for the second tasing; video (from the taser) belies the officer's claim that he reasonably believed the man was resisting at that point. Tasings one and three were OK though.
- Seattle officials (who have declared a homelessness state of emergency) conduct hundreds of sweeps annually to remove homeless encampments, resulting in the seizure and destruction of personal property, including identification, family photos, and medication. Homeless people: Which is cruel and unconstitutional. Ninth Circuit: A class action is not the right vehicle for this lawsuit, as each sweep is conducted differently. Dissent: But the plaintiffs argue the policies are unconstitutional no matter how they're applied. That's enough to go forward.
- Immigration law has long prohibited admission to the U.S. of any person likely to become financially dependent on the gov't. In 1999, the feds said that, in analyzing whether someone was likely to become a public charge, it would consider their receipt of cash benefits—but not non-cash benefits like food stamps and housing assistance. Twenty years later, a new policy: The feds will now consider some non-cash benefits. Sundry states sue, and the new rule is preliminarily enjoined nationwide. Ninth Circuit: The new rule is perfectly consistent with the law. Judge Bybee, "concurring, perplexed and perturbed": "[I]t is time for a feckless Congress to come to the table and grapple with these issues. Don't leave the table and expect us to clean up." (Ed. note: District courts in Maryland and New York have also issued nationwide injunctions, so the rule is still not in effect.)
- Allegation: Clovis and Sanger, Calif. police bungle their responses to domestic violence reports by woman against her boyfriend (himself a Clovis police officer). Boyfriend retaliates against the woman with more physical and sexual assaults. Woman sues the officers, claiming that they made things worse by, for example, disparaging her to her abusive boyfriend and announcing that the boyfriend and his father (also a cop) were "good people." Ninth Circuit: These actions may have emboldened the abuser—leaving the woman worse off—so the woman's due process rights may have been violated. But qualified immunity means she's out of luck.
- And in en banc news, the D.C. Circuit will reconsider its precedent permitting the feds to allow pipeline companies to use eminent domain while at the same time preventing landowners from challenging seizures in court. The Ninth Circuit, however, will not reconsider its decision denying qualified immunity to San Bernardino, Cal. officers who suffocated a mentally ill man in the back of a police car. Dissent: The Supreme Court often reverses us when we deny qualified immunity, and this case seems like a candidate for similar treatment.
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