Enjoy the latest edition of Short Date, a weekly feature written by a bunch of folks at the Institute for Justice.
Friends, join us in DC on Tuesday, March 7th for a symposium on Fr Protected: How the police became untouchable, Joanne Schwartz’s timely new book. The event will feature panels on official accountability—including an appearance by one of the prosecutors Monroe vs. Pape!—as well as a live recording of the Short Circuit podcast. The event will be held at the Law School, hosted by IJ and the Georgetown Center for the Constitution. Click here for details and to RSVP.
- For more than 50 years, New York City has implemented multiple iterations of its “rent stabilization” law, which it has repeatedly amended due to a seemingly constant shortage of affordable housing. Will the Second Circuit say these restrictions are unconstitutional, or instead call them an exercise in “finely tuned, legislative judgment”? Click on the link to solve the mystery! (Admittedly, it’s not a particularly difficult mystery to solve on your own, but the link is right there.)
- But wait! New York rental regulations may not apply to them, but they may be unconstitutional as applied! What will the Second Circuit say about that? (Again, it says what you expect. But if the courts refuse to provide dramatic suspense, your editors reserve the right to produce it.)
- In Lackawanna County, Penn., if a court finds you can afford to pay child support but you can’t, you’ll get jail time and no access to work release to earn money unless you spend the first half sentenced to “community service.” in a private recycling center, for almost no pay in unsanitary and dangerous conditions. Third Circuit: It may sound like involuntary servitude, but it does not violate the Thirteenth Amendment. But it sounds like it goes against the Act on the Protection of Victims of Human Trafficking and labor laws. Disagreement: “Choices usually come with consequences,” and these deadbeat dads were just about to pay child support.
- Under a 90-year-old North Carolina law, publishing a “derogatory report” about a candidate for office is punishable if the speaker knows the report is false or speaks with reckless disregard for its truth or falsity. The campaign, which faces prosecution under the law, is challenging the First Amendment and seeking a preliminary injunction. District Court: no prospect of success on the merits. Fourth Circuit: It’s actually hard to see how the plaintiffs could lose.
- A Winterville, NC police officer who ordered a passenger to stop livestreaming during a traffic stop is protected by qualified immunity, the Fourth Circuit says. Previous cases have involved video recordings (not live broadcasts) by bystanders (rather than the individual being detained). However, police livestreaming is indeed protected by the First Amendment, so the lawsuit against the city (which allegedly prohibits such livestreaming) should not have been dismissed.
- Just as two wrongs don’t make a right, the Sixth Circuit explained that “a policy that favors out-of-state interests does not justify another that burdens them.” Thus, Kentucky’s tax on its own coal—which causes its own power plants to buy coal from other states—cannot be offset by artificially discounting the price of coal within the state because it likely violates the dormant Commerce Clause.
- Charges: A man in Lewis County, Ky. dies from alcohol withdrawal (or dehydration resulting from it). So why does his death certificate say he died of fentanyl poisoning? And if the prison doctor (who ignored contractual obligations to visit the prison) called and said the man needed to be taken to the hospital, why is there no record of the call? Sixth Circuit: These are some of the questions that should go to the jury. QI grants have been canceled almost across the board and the district could also be at risk due to coaching failures.
- At one point in Dickens’s Gloomy house the doomed Mr. Gridley asks Mr. Jarndyce, “Do you know anything about courts of justice?” To which Jarndyce replies, “Perhaps I am, to my chagrin.” We won’t say whether it’s unfortunate or not, but the Sixth Circuit does a little digging into the history of these “courts of equity” and their bankruptcy powers in this case about a debtor who ran a college chain and wanted to avoid bankruptcy (to remain eligible for those sweet federal student loans loans).
- Blaming his sergeant for reporting him, a Mansfield, Ohio police officer makes a public records request for her personnel file. Alas! The file contains a statement made during a polygraph examination about “unnatural sexual behavior, … some of which may have occurred while she was a minor.” Can he sue the city’s public records officer for publishing unredacted files? District Court: No qualified immunity. Sixth Round (unpublished): Reversed. State law appears to have required the disclosure, and the information could help the public evaluate her fitness to be an officer.
- County Jail Nurse in St. Charles, Mo. does not give the mentally ill prisoner his medication, which his mother left behind, instead puts him on suicide where he can be closely watched. And indeed, the officer—hesitant to enter the prisoner’s cell unsupported because of his imposing size and strange demeanor—watches closely as he plucks out his own eye. Eighth Circuit: Qualified immunity for nurse and no penalty for district to delete video.
- WinRed, Inc. is a federal political action committee that collects contributions for Republican candidates. In the 2020 election, he came under fire for allegedly defrauding donors by pre-checking boxes for recurring donations and convoluted opt-out procedures. In response to the Minnesota AG’s investigation, the group is filing a federal lawsuit, arguing that, as a federal board, they are not subject to state consumer protection law. Eighth Circuit: Federal election campaign law does not preempt every law that might affect federal PACs, and it does not specifically affect this one.
- The video shows an angry pre-trial detainee throwing toiletries and some papers on the ground (in front of him). Ramsey County, Minn. Jail Officer. (who was behind him) tackled him, breaking his ankle (among other injuries). Eighth Circuit (unpublished): A detainee who is agitated but obeys the last order he was given and does not pose a threat has a clearly established right not to be forcibly taken to the ground without warning. There is no qualified immunity.
- Police fire tear gas at two members of the National Bar Association who were acting as legal observers at a large protest in St. Louis in 2015—while standing on a property owned by one of them. Eighth Circuit: Sorry, but in 2015, it was not clearly established that people have a First Amendment right to observe the police doing their jobs. Disagreement: We founded it in 2005!
- “To be sure, handcuffing a well-behaved, unarmed, 83-year-old woman who followed police instructions could violate standards of social decency. In retrospect, it seems unnecessary. And grandmothers across the country can rightly wag their finger at the experienced punishment police action here . But…” So says the dissent in this (unpublished) Ninth Circuit opinion. There is no qualified immunity for these indecency officers in Chino, California.
- In order to seek a writ of habeas corpus, one must be “in custody,” which does not necessarily mean “physical custody” (according to SCOTUS in 1963). Eleventh Circuit: Nevertheless, individuals subject to Florida’s lifetime sex offender registration and reporting requirements are not in custody. Consent: Custody should mean physical custody.
- Is it an unconstitutional delegation of Congressional power to allow the President to call steel imports a threat to “national security” based on . . . not much and then impose tariffs on them? Federal Circuit: No, and there was also no statutory time limit issue.
- And in banking news, by a 6-6 vote, the Second Circuit decided not to reconsider its opinion that the priest—whose appointment as Miami bishop of the Russian Orthodox Church Abroad has stalled after allegations of forgery and fraud—can continue to work to launch his defamation lawsuits against the church. The doctrine of church autonomy, which advises courts not to interfere in religious matters, does not mean that the church has the right to interlocutory review of some adverse decisions below.
“The Vermont Constitution strongly protects private property,” and that’s exactly what the state’s declaration of rights, which dates back to 1777, says. Sounds like something we’d write in a nutshell. But actually, encouragingly, that quote comes from a recent Vermont Supreme Court ruling! Indeed, protecting “the right of citizens to security in their country was a key motivating force in the creation of the Vermont Constitution.” Shout from the Green Mountains to the Connecticut River and back to Lake Champlain and click here to learn more.