Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
If officers point a surveillance camera at a home for eight months without a warrant, is that an unconstitutional search? Earlier this year, the First Circuit ruled that not only is it not unconstitutional, but also that it's not even a search. Phooey! In an amicus brief, IJ is urging the Supreme Court to take up the case and adopt a more common sense approach to its Fourth Amendment jurisprudence: looking for evidence is a search.
- Marine Corps refuses to allow Sikh recruits to maintain their religiously required hair and dress during basic training, even though every other service branch fully accommodates Sikh servicemembers—and even the Marines will after basic training. A RFRA violation? Colonel Jeppe (paraphrasing): Deep down in places you don't talk about at parties, you want me [violating religious liberty during basic training]—you need me [violating religious liberty during basic training]. D.C. Circuit: "[I]t is difficult to imagine [the Sikh plaintiffs] losing"; give them a preliminary injunction.
- Second Circuit: It's possible that $17 mil was an unconstitutionally excessive fine in this case involving banking fraud in the cannabis industry, but the district court likely overcorrected by dropping it to $100k. Such reductions should cure the excessiveness, but no more.
- North Carolina inmate with vision impairment complains that his cell is not ADA compliant, prompting prison nurse to threaten him with involuntary sedation if he won't shut his trap. His trap remains un-shut and Nurse Ratched makes good her threats. He files a grievance, but it is dismissed as untimely, so he goes to federal court. Fourth Circuit: And there's a decent argument the prison's administrative process was so byzantine that the inmate had no remedies to exhaust. The trial court can clear that up on remand.
- Allegation: From a distance of 10 feet, man records TSA agents patting down his husband (who had infant formula that couldn't be opened for testing) at Richmond, Va. airport. When ordered to stop recording and delete the footage, he complies, and the family is allowed on its way. A First Amendment violation? Feds: Think of the terrorists. Fourth Circuit: Think of the split-second decisions TSA agents will be afraid to make if they don't have total immunity for violating the Constitution. Reversed and dismissed.
- North Carolina farmworker labor union relies on two types of agreements when negotiating with farm owners: settlement agreements, which resolve disputes under the condition that the owner affiliate with a union, and dues-checkoff agreements, which require the owner to withhold union dues from member paychecks and transfer the money directly to the union. That is, until North Carolina bans the use of such agreements in 2017. Fourth Circuit: Though the ban may have a greater impact on Latinos and non-citizens, there's no evidence of discriminatory intent, and it is constitutional.
- Friendly advice from the Seventh Circuit: If you have medical issues that a police officer might mistake for inebriation, it may be a good idea to wear a medical bracelet while driving.
- After East Chicago, Ind. firefighters' union lobbies against the mayor, the city imposes a work schedule that is unlike any other in the country and that wreaks havoc on firefighters' sleep and personal lives. District court: Which was plainly retaliation, as an official admitted on surreptitiously recorded tape. Plus, there's no evidence of any benefits to the city's finances from the change. Seventh Circuit: Preliminary injunction affirmed. Easterbrook, J., concurring: Political payback is part of democracy, and judges don't have any business weighing costs and benefits of democratically enacted policies—even petty and mean-spirited ones. Alas, the city didn't make that argument.
- "Knowingly" is a word that can attach to a plenitude of phrases. But does it attach to "who has not attained the age of 18 years" in a federal statute that makes certain statutory . . . acts criminal? The majority and dissent of this Eighth Circuit panel have a lot of statutory points to say about it.
- On their own time and away from school, Albany, Calif. students post racist memes about other students to a private group chat. Posts are then shared beyond the private group, leading to substantial disruption at school. Can the school expel the students? Ninth Circuit: Last year's "angry cheerleader" case means that off-campus online speech is usually protected, but this stuff was "reasonably foreseeable" to get out and disrupt school life. Concurrence: I'm into banning some forms of "hate speech."
- Allegation: Vancouver, Wash. middle school teacher wears a MAGA hat to teachers-only cultural sensitivity and racial bias training. One teacher cries. Another feels threatened. The professor leading the training feels traumatized. The principal cusses out the offending teacher and tells him not to wear the hat again, which makes him feel harassed, intimidated, and bullied. Ninth Circuit: We feel like if the principal was going to have a Bernie Sanders sticker on her car, she shouldn't be silencing other political speech. Grant of qualified immunity reversed.
- San Bernardino, Calif. officers purportedly conducting inventory search of car they are having towed don't actually inventory the many pieces of property they find—just the one illegal thing. Ninth Circuit: Minor noncompliance with dept. policy. No need to suppress the evidence: Forrest, J., dissenting: A Fourth Amendment violation.
- Joseph "Tiger King" Maldonado-Passage was sentenced to 22 years in prison for hiring two hitmen to take out his foe, an animal-rights activist. (Neither was successful; one went to the beach instead, and one was an undercover FBI agent.) (Tiger King: Murder, Mayhem and Madness is on Netflix, if you wish to revisit or learn about the sordid story for the first time.) Tenth Circuit (2021): Convictions stand but resentence the man. District court: Okay, 21 years. Tenth Circuit (2022): Which is fine.
- Nevada Supreme Court: Qualified immunity, a federal doctrine, does not shield state and local officials from state constitutional claims. Nor is there any need for the state legislature to give people a permission slip to seek damages for violations of the search-and-seizure provisions of the Nevada Constitution: "We simply recognize the long-standing legal principle that a right does not, as a practical matter, exist without a remedy for its enforcement." (IJ argued this case as friend of the court. We also produced a stirring podcast on the topic of state remedies as a friend of the people.)
- Ohio Supreme Court: When the gov't wants to seize private land for public use via eminent domain, it can only take as much as it needs and it must show its needs with actual evidence. (IJ urged this course of action as amicus.)
Friends, until this week, Wisconsin was one of the very few states that banned the sale of most homemade, shelf-stable foods—like chocolates, candies, dried goods, and roasted coffee beans. The ban was very pleasing to the commercial bakeries that lobbied for it, but a poor deal for everyone else. So poor that the ban flunked the state's rational basis test, a court ruled this week, noting that "every single [state] employee who testified in this case stated that [the ban] is unjustifiable as a matter of food safety." [Bold in the original.] Click here to learn more.
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