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.
- Aluminum sheet manufacturer changes its overtime policy, requiring its unionized workers to sign up for overtime a week in advance. Union members protest by refusing to sign up for overtime, and one disgruntled union member expresses his displeasure by scrawling "whore board" above the overtime sign-up sheets, leading to his suspension and eventual firing. NLRB: Defacing company property with the words "whore board" was protected activity related to the protest of the new overtime rules. D.C. Circuit: That's right, but the NLRB ignored the company's argument that it had an obligation to maintain a harassment-free workplace, so the Board should take another look.
- ISIS-supporting Staten Island, N.Y. man conspires to commit domestic terrorist attack against police, tries to stab FBI agent. His resulting sentencing guidelines sentence is 85 years' imprisonment. District court: 17 years is long enough. Second Circuit: That is a "shockingly low sentence." The case is remanded for resentencing. Partial dissent: "I fear the majority would prefer to substitute its sentencing preference for that of the District Court."
- Food meant for local jail winds up in jail supervisor's Hattiesburg, Miss. restaurant. A month after the supervisor and his wife are sentenced (several years in prison plus six figures of restitution) for hiding income from IRS, federal agents who worked on the case give local news interview. The couple sues the agents in state court for slander. Fifth Circuit: The feds appropriately removed the case to federal court—where it must be thrown out because the couple didn't file a particular piece of paper required in federal tort cases.
- Fifth Circuit: We're not saying that this diabetic prisoner in Texarkana, Tex. federal prison who broke his ankle and went without effective medical care for a weekend and then served 93 days in segregated housing after he complained doesn't have a Bivens claim. But if he didn't, it would be for the reasons expressed in this 450-word footnote. Concurrence: Well, I'm saying he doesn't have a Bivens claim for the reasons expressed in that 450-word footnote.
- Livonia, Mich. undercover cop sees "beat-up minivan" late on winter night, has a hunch that crime is afoot. He calls uniformed cops, and they—after noting the minivan's three occupants are black men—tail the minivan across three jurisdictions, eventually stopping the men as they are leaving a store (where they bought space heaters). Yikes! One of the men has concealed weapon, for which his permit has expired. He's arrested. (All charges are dropped after state court finds the stop unconstitutional.) The man then sues the cops, claiming violations of both the Fourth and Fourteenth amendments. Sixth Circuit: Qualified immunity for the uniformed cops but not the undercover cop. Partial dissent: A jury might find the uniformed cops also targeted the group for "shopping while black."
- Woman asks a friend to look after her 15 dogs while she's away. The friend notifies authorities of the appalling conditions the dogs are living in. Montgomery County, Tenn. animal control enters, takes photos, removes the dogs. After the photos are disseminated publicly, the woman loses her job. But the animal cruelty charges against her are dropped after the search of her home is determined to be unconstitutional. (Five of the dogs are returned to her.) Can she sue various officers and the county for violating the Fourth and Fourteenth amendments? The Sixth Circuit says no.
- Bibi Von Sonnenberg, a German Shepherd of esteemed lineage, escapes from her backyard. North Little Rock, Ark. animal control finds her, destroys her breeding value by spaying her, and gives her up for adoption—even though a simple microchip scan would've revealed the identity of her owner. Owner: The state must give notice before deprivations of canine property. Eighth Circuit: Very immunity. So summary judgment.
- Does the word "diet" mean "assisting with weight loss" such that soft drinks like "Diet" Dr Pepper are committing false advertising? The Ninth Circuit says no.
- Las Cruces, N.M. police officer: Who could possibly have known that it violates an arrestee's rights to put him in the back of a squad car, hands cuffed behind his back and with no seatbelt, and then to intentionally drive recklessly so that he is slammed back and forth, injuring his shoulder, and then to deny him medical treatment for more than two hours despite medical treatment being readily available? Tenth Circuit: You. You could have known that. No qualified immunity.
- Allegation: Homeless man rides his bike across the property of a defunct Cartersville, Ga. elementary school to get to the adjacent storage unit in which he lives. Within 60 seconds of entering the school property he is detained and arrested for criminal trespass. (There were no warning signs against trespassing.) The charges are eventually dropped. Arresting officer: You can't sue me for false arrest because you pleaded guilty to a crime! Eleventh Circuit: Yeah, in a totally unrelated case that had nothing to do with the crime you arrested him for. Case remanded. (#appellatetwitter content warning: The opinion repeatedly uses "pled" instead of "pleaded.")
- And in en banc news, the Tenth Circuit will not reconsider its decision that the Takings Clause is not implicated when a SWAT team blows up an innocent person's house in pursuit of a fugitive. (This is an IJ case.)
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