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.
Friends, please join us next Thursday, June 30 at UCLA—or via livestream on our Facebook page—at 1:30pm Eastern/10:30am Pacific for the debut of our interactive civil rights study as well as a live recording of the Short Circuit podcast with Professor Eugene Volokh of UCLA, Julia Yoo of the National Police Accountability Project, and Nicholas Yoka of Panish Shea Boyle Ravipudi LLP. Click here to RSVP.
- NYPD officers are alerted to gunshot at Bronx apartment building by ShotSpotter, a surveillance system that involves putting microphones all over the place. A stop-and-frisk of two men near the scene turns up a gun. Defendants: ShotSpotter is not reliable, and there was no reasonable suspicion for the stop. Second Circuit: An officer testified it's usually pretty reliable in her experience. Convictions affirmed.
- In 2014, the SDNY found that lawyer Steve Donziger had fraudulently obtained an $8 bil judgment against Chevron in an Ecuadorian court. Donziger then refuses to surrender his passport or produce discovery that would allow Chevron to identify assets from which it could recoup the $800k Donziger was ordered to pay. He's found first in civil contempt and, when that proves ineffective, criminal contempt. Donziger: The prosecution was unconstitutional because the special prosecutor who oversaw the contempt proceedings was appointed in violation of the Appointments Clause. Second Circuit (over a dissent): The Attorney General had the power to oversee the prosecutor. No matter that he chose not to.
- After his interview for Georgetown Law goes poorly, rejected student starts a massive campaign of online harassment aimed at his interviewer, resulting in, among other things, hundreds of phone calls from strangers seeking sex with the interviewer, his wife, and his child. The would-be lawyer is convicted of cyberstalking but argues that the law is unconstitutionally overbroad. Third Circuit: Nah, it's fine. We also affirm the restitution to the interviewer, but vacate the restitution to Georgetown Law, which suffered no property harm.
- In 2019, Texas amended its alcohol laws to allow breweries to sell direct to consumers for off-premises consumption, but only if they produced no more than 225,000 barrels at facilities they wholly or partially owned. After Texas orders a brewer to stop consumer sales, the brewer responds that it doesn't own the brewing facilities, it leases them. Fifth Circuit (in a pun-filled opinion): If the card says "Moops," it's Moops. If the law says "owned," it's owned.
- The "open fields doctrine" allows officers to intrude upon private property without it being a "search" under the Fourth Amendment. The courts have expanded the doctrine to include areas that are neither "open" nor a "field." But the Sixth Circuit explains it hasn't been expanded enough to turn "seizures" into "non-seizures" under the Fourth Amendment, even if the seizures, as in this case, were of cows.
- Husband and wife run an international illicit cigarette business, selling them tax free to customers and depriving local, state, federal gov'ts of tens of millions of dollars of tax revenue. It all comes to naught, however; they're convicted and sentenced to 10 and 5 years respectively, and they're ordered to forfeit tens of millions of dollars to the gov't. But wait! The forfeiture order was not included in their sentence; the gov't asked for it, but the district court failed to include it—and didn't tack it on until after they'd appealed their convictions and money judgment-less sentence. Sixth Circuit: So they don't have to pay it.
- Eight people arrested at Rockford, Ill. Black Lives Matter protest have a rough weekend in jail. (One is denied prescription medication. Others have injuries, like an open head wound, that aren't attended to. Another is confined in solitary.) Did it violate the Fourth Amendment for them not to receive bail hearings for 48 to 68 hours? Seventh Circuit: We can see why one would think that given all the dicta out there pointing that way. But no.
- The Boycott, Divestment, and Sanctions (BDS) movement encourages individuals and businesses to refrain from doing business in Israel or with Israeli companies. In response, Arkansas in 2017 enacted a law that required companies contracting with the state to certify that they would not boycott Israel. The Arkansas Times sued, alleging that the requirement violated the First Amendment. Eighth Circuit (en banc): You could read the law that way, but we read it narrowly to cover only non-expressive economic conduct. Dissent: Nothing narrow about this law.
- Missouri sex offenders cannot be within 500 feet of any public park with playground equipment. Jackson County sheriff interprets this to prohibit such folks from being present at a homeless shelter near a playground, so he and his deputies conduct shelter sweeps for offenders. The shelter sues, the sheriff resigns, and the county shifts its tune and tells the court it won't prosecute people seeking the shelter's services. Eighth Circuit: Well then, the shelter's claims against the county are moot. And qualified immunity for the sheriff.
- Sacramento, Calif. cop says, "F— this guy, I'm going to hit him" before attempting to ram the man with a police cruiser. The cop and his partner then shoot the man 14 times. He dies. The man's father settles his lawsuit for $719k; the man's siblings' suit takes multiple trips up and down the federal courts. Ninth Circuit: Not anymore. Their First Amendment claim to familial association (their last remaining claim) doesn't survive because . . . well, it just doesn't.
- Employees at Tampa, Fla. power plant respond to ammonia leak without first donning protective gear. A violation of OSHA's HAZWOPER standard? (For the uninitiated, that's the Hazardous Waste Operations and Emergency Response standard.) OSHA: Yep, pay this $9k fine. Eleventh Circuit: Reversed. HAZWOPER only applies to "uncontrolled" releases, and this was a controlled release from an overpressurized pipe; it gave workers a chance to sort things out before the pipe burst.
- And in en banc news, the Fifth Circuit will reconsider its decision permitting the ATF to redefine the word "machinegun" to include bump stocks, rendering them illegal and requiring the owners of up to 520k legally purchased bump stocks to relinquish or destroy them—on pain of felony prosecution.
- And in amicus brief news, IJ is asking the Ohio Supreme Court to uphold an appeals court ruling that power companies are not entitled to an "irrebuttable presumption of necessity" whenever they want to take land by eminent domain. Instead, the state constitution requires meaningful, fact-based review to ensure companies don't condemn more property than is actually needed for public use.
This week, the Supreme Court handed parents and students a major victory in Carson v. Makin, an IJ case, ruling that if states offer tuition assistance for families to use at private schools, they cannot prevent families from choosing to send their children to schools that teach religion. Maine officials had argued that the state was not violating the First Amendment because it did not exclude schools from its program because they are religious; rather, it excludes them if they teach religion. That distinction, which the First Circuit had embraced, is no longer of constitutional significance. Click here to read more. Or click here for the podcast, the latest episode of which covers the decision.