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.
Here at IJ, it's been a big couple of weeks for small victories. This week, a Pennsylvania court denied the state's motion to dismiss our challenge to a law that can prevent people with past criminal records from becoming cosmetologists. And last week, a Virginia court ruled that our challenge to a Charlottesville business license tax on freelance writers that does not apply to the traditional press can go to trial. And a Nevada court refused to dismiss IJ's challenge to a law removing millions of dollars of tax credits for educational scholarships that can be used at private schools.
- All new tobacco products must receive premarket authorization from the FDA. And if that product is to be advertised as a safer alternative to traditional cigarettes, the authorization process is more extensive (to verify the product is indeed safer). E-cigarette manufacturers:
We aren't selling tobacco products; we shouldn't be subject to premarket review at all. And even if we were,it violates the First Amendment to make us go through the more extensive process. D.C. Circuit: E-cigarettes are tobacco products. Andthere's no First Amendment problem with keeping the public safe from false advertising. [Ed.: Corrected. See here for a more reasonable summary.]
- Man participates in Washington, D.C. house-flip scheme that bilks banks out of more than $5 mil. He's sentenced to over 24 years. D.C. Circuit (2010): His money laundering conviction can't stand, as the activity was part and parcel of the underlying bank fraud conviction instead of a distinct offense. But no need to resentence because his sentences run concurrently. D.C. Circuit (2019): You know what? We got that wrong. Turns out the money laundering conviction increased his sentence by up to nine years. Resentence him.
- Man purchases 500 lethal doses of cyanide under false pretenses and offers them for sale on the internet to suicidal people. In all but one case, he sends Epsom salts instead. Judge Selya of the First Circuit: Convictions affirmed for the most part, and here's a vocab quiz: golconda, yola, repastinating, repast, exigible, tarry, immurement.
- To maintain his gov't contracts, owner of Springfield, Mass. towing company pays "street tax" to the Genovese crime family. He loses the contracts and stops paying. Ten years later and under new management, the family seeks to collect arrears and a monthly fee going forward. The owner negotiates, paying some and getting threatened for not paying more. Oh snap! He's been wearing a hidden camera. (Three mobsters take plea deals and a fourth stands trial.) Mobster 4: I went to just one meeting with the owner where I spoke "only meaningless gibberish." First Circuit: Conviction affirmed.
- Allegations: Following a domestic altercation (that involves both parties hitting the other's car with a baseball bat), New York man drives away, while his girlfriend calls 911. Police claim that the girlfriend told the 911 operator that the man may have drugs on him, a claim the girlfriend strenuously denies. Man is pulled over, a drug dog alerts on his car, and the officer finds what he suspects are "crumbs" of crack cocaine, which field test positive for cocaine. Man is arrested, taken to the station, where a drug dog does not alert to him. He is, nevertheless, subjected to a visual cavity search of his anus. A Fourth Amendment violation? Second Circuit: There was no reason to believe this guy was hiding anything in his keister, and New York's highest court has ruled that you need reasonable suspicion for such a search. No qualified immunity, remanded to resolve factual disputes. Dissent: So now police are expected to follow well-established state constitutional law as well as federal constitutional law? Outrageous!
- Second Circuit: Hey, remember that opinion we issued recently, where we said that the Fair Housing Act allows claims against landlords for tenant-on-tenant harassment? Well, we thought about it and we're reaching the same conclusion, but our new opinion is narrower. Dissent: It's not narrower, and it's still wrong.
- After pharmacist stops filling two customers' opioid prescriptions, he gets threatening text messages. Medford, N.J. police invite the pharmacist to the station to discuss. He's there for seven hours (interviewed for four), offered food and water, uses the restroom unaccompanied multiple times, has access to his cell phone, and is never restrained. The conversation yields info that is used to build the case against the extortioners (who plead guilty) and to charge the pharmacist with distributing controlled substances. (Among other things, he filled prescriptions for a customer who came in six days a week, multiple times daily, with prescriptions bearing numerous different names.) But he's never given a Miranda warning. Third Circuit: 15-year sentence affirmed. It was his choice to go to the police, he could've left when he wanted, and his statements were voluntary.
- In the wake of Russian meddling with the 2016 election, Maryland officials pass a law requiring websites large (The Washington Post) and not so large (the Cecil Whig) to disclose information about political ads they run. Newspapers: The law's compliance costs threaten political speech. Fourth Circuit: Just so. Serious burdens that barely address the problem of foreign interference? That's a free speech no-no. (Click here for some editorializing on the matter.)
- Friends, last week's edition contained an egregiously misleading summary. We erroneously and unfoundedly asserted that the Fifth Circuit held that a single vehicle on an otherwise empty road can constitute "traffic," and thus a driver pulled over for driving too slowly who was impeding only himself couldn't challenge the stop. In fact, as the magistrate judge's report makes clear, there was a second vehicle that was impeded by the defendant's slow driving, and the Fifth Circuit determined it was not a plain error to regard a single instance of impeding a vehicle as "impeding traffic." The staff regrets the error and has been moping all week.
- "The plaintiff, a lawyer who styles himself both a monarch and a deity, brought claims on behalf of an Indian tribe alleging that [the state of Louisiana and the United States of America] have, among other misdeeds, monopolized 'intergalactic foreign trade.'" And his claims cannot proceed, says the Fifth Circuit.
- Four Michigan State University students who were victims of campus sexual assault file suit under Title IX, alleging that the university's response to their allegations left them vulnerable to future sexual harassment. A valid claim? Sixth Circuit (deepening a circuit split): Mere vulnerability isn't enough; a plaintiff must show that the university's inadequate response led to further harassment, and none of the plaintiffs have alleged that.
- Allegation: Sevier County, Ark. jail officers accidentally pepper spray inmate, then deny him a change of clothes, a shower, and medical attention. District court: No qualified immunity. Eighth Circuit: Yes qualified immunity. The guards gave the inmate access to a sink, a towel, and soap, and their failure to give any other care was not (or at least not "clearly") deliberately indifferent to his medical needs.
- Activist wants to use a megaphone outside Six Flags to complain about how animals are treated there. Vallejo, Calif. officials: Megaphones are noisy, so you need a permit first. The Ninth Circuit (over a dissent): Not so. Silencing a speaker because he might be loud outside an already-noisy theme park? That's a free speech no-no.
- U.S. Congresswoman's staffer solicits $5k bribe from Compton, Calif. medical marijuana dispensary in exchange for preventing the business from being shut down by the city. Shortly after payment is made, the dispensary is shut down. Ninth Circuit: The staffer's conviction is affirmed. "It is immaterial whether the bribe recipient ever intended to follow through with his end of the bargain, so long as he agreed to perform the official act." (A separate unpublished order is here.)
- In 2015, an explosion at a Torrance, Calif. oil refinery injures four workers, sends a 40-ton piece of debris flying. Great Scott! The debris lands just five feet from a tank containing modified hydrofluoric acid, a highly corrosive liquid. The feds investigate, and ExxonMobil complies for the most part. But the company challenges subpoenas seeking information on what might have transpired had the debris pierced the tank. Ninth Circuit: And that information is indeed relevant to the investigation.
- Los Angeles officials enact ordinance requiring all prospective city contractors to disclose contracts with or sponsorship of the National Rifle Association. A violation of the NRA's and a would-be contractor's speech and association rights? District court: Indeed so. The text, legislative history, and comments the ordinance's sponsor made on Twitter "evince a strong intent to suppress the speech of the NRA," and its clear purpose "is to undermine the NRA's explicitly political speech." That's a First Amendment no-no.
- Apparently worried that people commonly confuse veggie burgers and vegan ham roasts with products containing animal products, Arkansas officials enact law prohibiting companies from using words historically used for specific meat products. So even if the packaging clearly indicates the product does not come from animals, they may not use words like "meat," "chorizo," or "roast." Tofurky: No one is confused—people buy these products because they don't come from animals. District court: No enforcing the law while litigation proceeds. (Ed.: IJ successfully sued Mississippi this year over a similar law.)
Earlier this year, Arizona officials threatened to shut down Greg Mills' engineering consulting firm where he builds electronic circuits for small businesses and startups. Greg has 30 years of experience in the industry, and throughout his career he has designed circuits for everything from flashlights to satellites. But Arizona says he can't call himself an engineer and he can't build circuits without first obtaining an engineering license. Which is ridiculous. The vast majority of engineers around the country are unlicensed. Those who are licensed typically work on bridges, dams, and building construction—things Greg does not do. The requirement does not protect public health and safety, but it does prevent Greg from earning an honest living while also making it harder for small, innovative businesses to hire engineers like Greg as needed. This week, Greg and IJ sued in Arizona state court, arguing that, among other things, the licensing requirement violates Arizona's constitution because a single agency makes the rules, enforces them, and adjudicates violations. Click here to learn more.